July 5, 2017
Dear Friends,

This week we are featuring two positive rulings in favor of journalistic rights and three upholding access to information. The U.K. High Court recently ruled in favor of freedom of speech over data protection rights, thus preventing the stifling of a publication by Associated Newspapers Ltd. by prior restraint. The European Court of Human Rights found criminal proceedings brought against a Turkish journalist for an article critical of high-ranking members of the armed forces to be a violation of that journalist's right to freedom of expression.

Decisions from the European Court of Justice on the right to information found that disputed documents by Member States must be reviewed in camera to assess the validity of the request, the European Parliament must disclose audit reports unless disclosure would undermine a protected interest, and that legal opinions given to the Council concerning proposed legislation had to be disclosed because due to an overriding public interest. With these three rulings the ECJ affirmed that transparency of EU proceedings is necessary for EU citizens to have confidence in the legitimacy of their institutions.

Enjoy reading the case analyses and we welcome your feedback!
This was a bad week for Google. First, the European Union fines the US search engine 2.1 billion Euros fine for abusing its dominant position by promoting its online shopping service to the detriment of its rivals…And then the Canadian Supreme Court ruled that Judges can order global removal of search results.
Delete Hate Speech or Pay Up, Germany Tells Social Media CompaniesSocial media companies operating in Germany face fines of as much as $57 million if they do not delete illegal, racist or slanderous comments and posts within 24 hours making Germany one of the most aggressive countries to crack down on hate speech and other extremist messaging on their digital platforms.
Facebook, Free Expression and the Power of a Leak: In some ways, online platforms can be thought of as the new speech governors: They shape and allow participation in our new digital and democratic culture in ways that we typically associate with governments. 

Facebook’s Secret Censorship Rules Protect White Men from Hate Speech But Not Black Children
In its 2017 World Press Trends study, WAN-IFRA estimates that globally, 56 percent of newspapers’ overall revenue came from circulation sales (print and digital) in 2016, indicating a shift from advertising to reader-based revenue which is reshaping the fundamentals of the industry. 
The European "migration crisis" and the media: A report on the press coverage of the migration phenomenon in eight European countries, and the consequences of media representations for public opinion and policy choices


United Kingdom

Stunt v. Associated Newspapers Ltd.
Decision Date: April 6, 2017
The U.K. High Court allowed an application made by Associated Newspapers Ltd. for a stay of proceedings under Section 34(2) of the Data Protection Act 1998 (DPA) on the basis that personal data it held was being processed for journalistic purposes with a view to publication. The Claimant, James Stunt is suing Associated Newspapers for misuse of private information, harassment and breaches of the Data Protection Act 1998. Stunt claims that Section 32(4) is incompatible with European Law. Therefore his personal data held by Associated Newspapers should be destroyed and they should cease processing it. The Court reasoned that Section 32(4) the DPA was an important provision in the balancing of data protection rights against the rights of free speech as laid down in the DPA and the European Convention on Human Rights.  Specifically, Section 32(4) fell within the ambit of the margin of appreciation vested upon Member States in preventing the stifling of journalistic rights by prior restraint on publication if the publisher was successfully able to assert the truth of the published material.


Dilipak v. Turkey
Decision Date: September 15, 2015
The European Court of Human Rights found criminal proceedings brought against a journalist for an article that was critical of high-ranking members of the armed forces to be a violation of that journalist's right to freedom of expression, despite the fact there had been no final conviction. The journalist was accused of having damaged hierarchical relations within the army (Article 95 of the Military Criminal Code), and of having denigrated the Turkish armed forces (Article 159 of the Penal Code) by writing his article. The Turkish courts eventually found the prosecution of the journalist to have passed the statute of limitations following six and a half years of criminal proceedings. The European Court of Human Rights found that the journalist's right had been interfered with because the criminal proceedings had a negative impact on his ability to perform his role as a political commentator. The European Court of Human Rights concluded that this interference could not be justified in a democratic society because the criminal proceedings had evidently been an attempt to suppress opinions and ideas that were considered disruptive or shocking, and therefore did not meet any overriding social need. Accordingly, the criminal proceedings were found to have violated the journalist's right under Article 10 of the European Convention of Human Rights.

European Court of Justice

IFAW Internationaler Tierschutz-Fonds gGmbH v. European Commission
Decision Date: June 21, 2012
The European Court of Justice (ECJ) held that when a person is denied access to information due to a Member State’s objection, the General Court (EGC) of The Court of Justice of the European Union (CJEU) has a duty to consult disputed documents in camera to assess the validity of the refusal. The International Fund for Animal Welfare (IFAW), an environmental and animal welfare NGO, requested access to various documents received by the European Commission in connection with the examination of an industrial project. The Commission disclosed all documents requested except the German Chancellor's letter because the German authorities said disclosure would undermine the protection of the public interest relating to international relations and economic policy. The Court found that the General Court was under an obligation to ensure “judicial protection for the person who ha[d] made the request” by consulting the documents originating from a Member State to determine whether "access to the document could validly be refused on the basis of the exceptions" claimed.
Ciarán Toland supported by Sweden, Finland and Denmark v. European Parliament
Decision Date: June 7, 2011
The European Court of Justice held that the European Parliament must disclose audit reports unless it explicitly determines that (i) disclosure of a requested document would specifically and actually undermine a protected interest, and there is no overriding public interest justifying disclosure, and (ii) the risk of the protected interest being undermined is reasonably foreseeable and not purely hypothetical. Irish lawyer Ciarán Toland, asked the Court to annul the decision of the European Parliament denying him access to an internal audit report concerning the assistance allowance given to Members of the European Parliament (MEPs) each year, including information regarding the operation of the allowance system and its abuses by its MEPs.  Since the Parliament's decision could not prove that disclosure would undermine any ongoing decision-making process, or identify any overriding public interest to justify non-disclosure, the Court found that the European Parliament had improperly withheld access to the impugned report, annulled its decision and awarded costs to Toland.

Sweden and Turco v. Council of the European Union, Denmark, Finland, United Kingdom, and Commission of the European Communities
Decision Date: July 1, 2008
The European Court of Justice (ECJ) found that a legal opinion given to the Council concerning proposed legislation had to be disclosed because (a) the Council had provided no concrete reasons as to why disclosure would undermine the protection of legal advice, and (b) there was an overriding public interest in disclosure. Mr. Turco, a resident of Italy, submitted a request to the Council for access to documents pertaining to a directive which laid down minimum standards for the reception of applicants for asylum in Member States. The Council refused to disclose the legal opinion on the grounds that it deserved special protection so as not to create uncertainty regarding the legality of the measure. The Court stated that openness grants legitimacy to the institutions and increases the confidence of EU citizens towards these institutions while the lack of debate and information may produce doubts in respect of the legitimacy of the whole decision-making process.

Kyrgyzstan: On June 30, 2017, the Oktyabrskiy Court in Bishkek satisfied two complaints against an independent news platform Zanoza.Kg. The complaints, brought by the prosecutor general, alleged that the publication defamed and insulted the President of Kyrgyzstan in two articles from 2015 and 2017. The court ordered the removal of defamatory materials and imposed two heavy fines of over $40,000 on Zanoza’s founders and their media company, ProMedia. The fine is extremely high, considering that an average monthly salary in Kyrgyzstan is around $400. Unfortunately, this might not be the end of Zanoza’s troubles, as the Oktyabrskiy Court still has to rule on three additional complaints for similar allegations.
Russia: Roskomnadzor, Russia’s governmental information watchdog, created a 12 person independent expert commission to review contentious decisions related to blocking content online. Roskomnadzo’s representative explained that usually a Roskomnadzor official makes a decision to block online content on the basis of an expert analysis provided by a relevant authoritative body. However, if the official disagrees with the expert analysis, he or she could then send it for review by the newly formed expert commission. The new commission is independent only in name.  Nine of its members are representatives of the Russian authorities, while the remaining three come from MailRu Group and Rambler&Co, two major Russian internet companies.
Uzbekistan: On June 27, 2017, Shavkat Mirzeev, Uzbekistan’s president, honored the Media Workers Day by calling on journalists to report on corruption and important social issues. Since Mirzeev took power, Uzbek media allowed itself some slight criticism of government officials and cautiously raised issues related to infrastructure and social programs. Although Merzeev’s words seem positive, it should be noted that during his 26 year reign, the former Uzbek president  also spoke supportively of the media, while his regime banned independent newspapers and imprisoned journalists.

Other Noteworthy

Boycott, Divestment, Sanctions (BDS) is a Palestinian-led movement for freedom, justice and equality. BDS upholds the simple principle that Palestinians are entitled to the same rights as the rest of humanity.
Spanish Parliament Affirms Right to BDS as Protected Speech: The Government of Spain must “recognise and defend the right of human rights activists from Palestine, Israel and other countries, to engage in legal and peaceful activities, protected by the right to freedom of speech and assembly, such as the right to promote boycott, divestment, and sanctions (BDS) campaigns”.
UN denounces Saudis demands that Qatar closes Al Jazeera: "Whether or not you watch it, like it, or agree with its editorial standpoints, Al Jazeera’s Arabic and English channels are legitimate, and have many millions of viewers. The demand that they be summarily closed down is, in our view, an unacceptable attack on the right to freedom of expression and opinion."
The U.S. Supreme Court struck down a North Carolina law prohibiting registered sex offenders from using Facebook, Twitter and other popular social media websites.
The Canadian House of Commons failed to pass Bill S-231, the Journalistic Source Protection Act, before rising for summer recess, striking a blow to the established international legal norms pertaining to the protection of journalists' sources. 
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