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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,
CGFoE, The University of Alabama School of Law, and Columbia Law School are inviting you to mark your calendars (if you have not done so already): On September 19, 2024, we will host the launch of the book Disinformation, Misinformation, and Democracy: Legal Approaches in Comparative Context at Columbia University Law School and online, from 12:30 PM to 5:00 PM ET.
The afternoon will be engaging. Here is why.
At the first panel, “Framing the Problem,” we will welcome two co-editors of the Disinformation, Misinformation, and Democracy volume – Ronald J. Krotoszynski, Jr. of the University of Alabama and András Koltay of Ludovika – University of Public Service, Hungary. The volume’s introduction, written by Professor Krotoszynski, sets the stakes: disinformation and misinformation present an existential danger to democratic self-government in the US and globally. Andie Tucher, a Professor at Columbia Journalism School, who has published on the evolution of conventions of truth-telling in journalism, will join the panel, and David Pozen, who teaches constitutional and information law at Columbia Law School, will moderate it.
The second discussion session, “National and Transnational Regulatory Approaches,” will offer perspectives from Latin America, Europe, and East Asia. Bernát Török of the University of Public Service in Budapest contributed to the volume with an article on the relevant case law of the ECtHR, and Ahran Park of Korea University, South Korea, contributed with a take on legislative challenges in the battle against disinformation in South Korea. Artur Pericles Lima Monteiro of Yale Law School, who has published on internet governance in Brazil, and on anonymity in the digital public sphere, will also join the panel. Jeremy Kessler, a First Amendment scholar and Professor at Columbia Law School, will moderate the conversation.
The third and final panel, “Social Groups and Institutions, Outside Government,” will welcome Charlotte Garden, the volume’s co-editor and Professor of Law at the University of Minnesota, who contributed with an article on the role of labor unions in battling misinformation in the US. The two other speakers will be Anya Schiffrin, Director of the Technology, Media, and Communications specialization at Columbia School of International and Public Affairs, who has published extensively on online disinformation, and Katie Fallow of Knight First Amendment Institute, who leads the Institute’s litigation on the government’s use of social media.
You can learn more about the speakers, their work, and publications here.
Do you plan to attend the event in person? If so, please register on Eventbrite and kindly note we will be meeting at Jerome Greene Annex (JGA), Columbia Law School, 410 W. 117th Street, New York. If you are joining us online, please fill out this Zoom registration form.
We look forward to seeing you on September 19!
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Join us for the launch of the book Disinformation, Misinformation, and Democracy: Legal Approaches in Comparative Context at Jerome Greene Annex (JGA), Columbia University Law School,
in person or online on September 19, 2024. |
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European Court of Human Rights
Almeida Arroja v. Portugal
Decision Date: March 19, 2024
The European Court of Human Rights (ECtHR) ruled that the State of Portugal violated José Pedro Almeida Arroja’s right to freedom of expression after domestic courts criminally convicted him of defamation and causing offence to a legal person for discussing how political interests allegedly negatively influenced the construction of a hospital. Almeida Arroja made remarks on a television program suggesting that due to the influence of a politician and his law firm, the construction of the pediatric wing for the São João Hospital was halted. As a result, he was charged with defamation and causing offence to a legal person. The Matosinhos Criminal Court sentenced him to pay a fine of EUR 4,000 and ordered him to pay EUR 5,000 in compensation to the law firm for non-pecuniary damages, for the crime of causing offence to a legal person, although it acquitted him of the defamation charges. His conviction was upheld by the Porto Court of Appeal which also convicted Almeida Arroja of aggravated defamation and increased the value of the fine and the damages. The Supreme Court of Portugal rejected Almeida Arroja's appeal. The ECtHR found that the Portuguese courts failed to properly balance Almeida Arroja’s right to freedom of expression and the right to reputation. Furthermore, the Court determined that the sanctions imposed on Almeida Arroja were disproportionate and unjustified in a democratic society, highlighting the public interest in the issues he discussed.
Canada
Hansman v. Neufeld
Decision Date: May 19, 2023
On May 19, 2023, the Supreme Court of Canada held that the public interest in protecting expression justified the dismissal of a defamation suit filed by a public school board trustee against a teacher who publicly criticized the trustee’s comments on an educational initiative aimed at fostering inclusion and respect for students who may face discrimination in school because of their gender identity and sexual orientation. After the trustee, Barry Neufeld, posted disparaging remarks about the initiative on Facebook, the teacher, Glen Hansman, was quoted in several media interviews describing Neufeld’s comments as “bigoted,” “hateful,” and “transphobic.” Neufeld filed a defamation action against Hansman. Following a reversal in the Court of Appeals, the Supreme Court upheld the trial court’s dismissal order, reasoning that Hansman’s speech was dissenting political speech in defense of a vulnerable group. For the Court, Hansman’s speech was within the “core” speech protected by the Canadian Constitution. As a result, the Supreme Court considered that the public interest in allowing Hansman’s speech outweighed any harm the speech caused to Neufeld.
Lethbridge and District Pro-Life Association v Lethbridge (City)
Decision Date: October 9, 2020
The Court of Queen’s Bench (now King’s Bench) in Alberta, Canada, quashed a decision of the City of Lethbridge refusing to post pro-life advertisements on its buses, bus shelters, and benches. A pro-life organization brought an application for judicial review contesting the city’s decision, arguing that it breached its constitutional right to freedom of expression. The Court agreed. It considered that the city’s actions were an unreasonable limit on freedom of expression and remitted the issue to the city to decide it afresh. According to the Court, the city did not balance the organization’s constitutional rights with the objectives that the city sought to pursue when it made its decision. The city’s reasoning also contained other errors upon assessing the right to freedom of expression, including placing too much weight on the content of the expression—and refusing to recognize that it dealt with matters of opinion—, as well as giving too much weight to the views of those who were upset by the ads—and not placing enough weight on the importance of freedom of expression in a free and democratic society, tolerant of minority views. The Court also found mistakes in how the city applied Canada’s Canadian Code of Advertising Standards, in that it failed to consider the political character of the ads and wrongly found that they were factually misleading. Finally, the city’s actions gave rise to a reasonable apprehension of bias, because the city had shown that it did not decide the association’s request fairly and with an open mind.
Godbout v. Attorney General of Quebec
Decision Date: September 24, 2020
The Criminal Division of the Quebec Superior Court invalidated Articles 163.1(1)(c) and 163.1(6)(b) in Canada’s Criminal Code (Cr. C), which criminalized child pornography, considering that they infringed on the right to freedom of expression guaranteed in the Canadian Charter of Rights and Freedoms (the Charter)—because the provisions were too broad in scope and their negative effects were not proportionate to the legislative objective of protecting minors. After an author and his publisher were prosecuted for selling a book that depicted instances of child sexual abuse, the Court held that the statutory provisions under which they were prosecuted—which outlawed written depictions of child sex as child pornography—violated the Charter because they posed too great a risk of punishing and chilling aesthetically important, socially productive expressions. To reach this conclusion, the Court applied a four-prong proportionality analysis which interrogated the relevant criminal statute’s objectives, its rationality in choosing a means to achieve them, whether it was unnecessarily broad, and its possible chilling effect on expression. The Court found that while the government established that the legislation bore a rational relationship with the legislative objective of protecting minors, the definition of “child pornography” in those provisions was too broad, had the potential of criminalizing literary expressions— or even victim narratives— and could socially stigmatize the writers so charged. Thus, the Court concluded that these negative effects likely outweighed the salutary effects of the provisions.
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COMMUNITY HIGHLIGHTS & RECENT NEWS
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● Canada: Centre for Free Expression Intervenes in Vancouver Island University v. Sarah Kishawi et al. In August, the Centre for Free Expression (CFE), based at Toronto Metropolitan University, submitted an intervention to the British Columbia Supreme Court in Vancouver Island University v. Sarah Kishawi et al. The case concerns the encampment on the campus of Vancouver Island University (VIU) and the VIU’s request for injunctive relief to disperse the camping demonstrators. In the intervention, the CFE refers to the Canadian Charter of Rights and Freedoms and its application to the VIU’s actions, analyzes the legislative context, and unpacks the “social function” and purpose of universities as sites for assembly and freedom of expression. The CFE argues “the University’s rights as a ‘property owner’ and its statutory powers in the ‘management of its privately owned land’ are not unlimited or absolute [and] the University’s statutory power does not necessarily pre-empt or extinguish the Charter freedoms of those using its property for expressive purposes.”
● PEN America: In Preparing for Protests, Are Campuses Going Too Far? by Lisa Tolin. As students return to campuses across the US and other countries, the protests are either about to resume or have restarted already, with the possibility of new encampments looming in the following days and weeks. This post, written by Lisa Tolin, Editorial Director at PEN America, warns university administrators against curtailing speech: the new policies – restrictions on protests, ramped up security measures, restricted access to campuses – must make sure freedom of expression is preserved. Kristen Shahverdian, PEN America’s Program Director of Campus Free Speech, argues that time, place, and manner restrictions to protect students’ access to education are within universities’ rights to impose. But at the same time, Shahverdian underscores, universities must put up with some level of disruption, “The objective of protests frequently is to disrupt. If restrictions go too far, they could infringe upon students’ right to protest. Students being forced to walk near a peaceful protest – even if they find it offensive – shouldn’t be cause to shut it down.”
● New UN Cybercrime Convention Sets Unprecedented International Anti-Human Rights Standard, by Joan Barata. In this article, published by Tech Policy Press, Joan Barata, Senior Fellow at The Future of Free Speech and Fellow at the Stanford Cyber Policy Center, argues that the newly adopted UN Cybercrime Convention offers authoritarian states like Russia and China tools to silence dissent and disregard their human rights obligations – all to, ostensibly, fight cybercrime. Barata lists some of the grave concerns, including vague references to human rights, expansion of the cybercrime notion with no clear threshold, and lack of judicial oversight regarding the collection of electronic evidence. “The Convention is a partial victory for those who defend an alternative vision of the public interest, where certain basic and fundamental rights are relegated to a secondary position,” Barata writes and asks: How come such a controversial proposal is now a legal instrument?
● Article 17: Free Speech and the Guillotine - The Countdown to Lenis v Greece, by Natalie Alkiviadou. The International Journal for the Semiotics of Law published an article by Natalie Alkiviadou, Senior Research Fellow at The Future of Free Speech, on the evolution of the ECHR’s Article 17. Referencing Lenis v. Greece, a case on homophobic speech, in which the ECtHR applied Article 17, Alkiviadou argues the Article’s application has surpassed its initial intent – that of a defense against totalitarianism – and in its current broad interpretation, could potentially threaten freedom of expression and “exacerbate challenges faced by marginalized communities.” To interrogate the tension between the ECHR’s Article 10 and Article 17, Alkiviadou turns to the relevant case law and scholarly arguments and calls for “a more cautious and judicious application of Article 17 to strike a balance between protecting vulnerable groups and upholding fundamental freedoms in a liberal democracy.”
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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
A Conceptual Analysis of the Overlaps and Differences between Hate Speech, Misinformation and Disinformation, by Claire Wardle. Commissioned by the UN Department of Peace Operations and the UN Office of the Special Adviser on the Prevention of Genocide, this recently published report delivers a conceptual analysis of the three major challenges of our time – hate speech, misinformation, and disinformation – and their similarities and differences. Written by Claire Wardle, PhD, Brown University, the report focuses on the contexts of conflict and high risk. Wardle provides an overview of relevant human rights law and international humanitarian law, stressing the “need for responses that respect freedom of expression while addressing harmful speech.”
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ISP Publishes Collection on Artificial Intelligence and the Digital Public Sphere. Yale Law School’s Information Society Project (ISP) just launched Artificial Intelligence and the Digital Public Sphere, a series of essays that examine the ways in which AI influences the digital public domain. Written by scholars, the five essays focus on the EU AI Act, AI chatbots’ presence in the legal services of China, artist-technologists of color as “active co-creators of knowledge in the digital realm,” digital platforms as “labor management machines” with empirical context from the US and Brazil, and possible models of AI regulation.
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