May 9, 2016

Dear Friends,

Tomorrow, May 10th, is the fourth hearing of the on-going judicial case concerning the right of Italian journalists Davide Vecchi and Augusto Mattioli not to disclose their sources and to strike a balance between the right to privacy and freedom of expression. Columbia Global Freedom of Expression Legal Scholar Sofia Verza analyzes the case in her blog Italy: a case endangering journalists’ rights to report and protect their sources.

Newly published decisions this week cover a range of issues including a Chilean court ruling on the right to be forgotten, Russian court rulings pertaining to false information and incitement and a "top of the bracket" defamation suite from the UK. From the US we have an analysis of the decision Nwanguma et al v. Trump et al  
which allows claims that presidential candidate Trump had incited to violence and been negligent to proceed to litigation

Enjoy reading the case analyses and we welcome your feedback!

For the Record 

At the IPI World Congress on Friday May 19th from 16:00 - 17:30,Columbia Global Freedom of Expression will present recent case law from the database along with Scott Griffen who will discuss global defamation laws from IPI's Media Laws Database.

Media Legal Defence Initiative (MLDI), along with five other NGOs, has submitted a third-party intervention in Aleksey Navalnyy v. Russia, a case before the European Court of Human Rights. Columbia Global Freedom of Expression experts, Can Yeginsu and Jonathan McCully, contributed to this brief which argues that holding Internet users liable for hyperlinking risks creating a pronounced chilling effect on the right to freedom of expression online.  

Freedom of expression: the crucial role of Strasbourg
In Strasbourg on March 24th, judges, journalists, lawyers and activists discussed the challenges facing the protection of free expression in Europe.The video recording of the conference promoted by ECPMF is available online:
Part 1 can be watched here,  Part 2 can be seen here .
English PEN calls for public interest defence in UK official secrets laws: 
Legal thinking around First Amendment must evolve in digital age” (Columbia Journalism Review): Takeaways from an all-day symposium co-sponsored by the Knight First Amendment Institute at Columbia University and the Tow Center for Digital Journalism. Watch the event stream here


United Kingdom

Shakil-Ur-Rahman v. ARY Network Limited & Fayaz Ghafoor 
Decision Date: December 2, 2016 
The U.K. High Court ruled in favor of Mir Shakil-Ur-Rahman, Chief Executive of Pakistan's largest media group, awarding him "top of the bracket" damages of £185,000 in a defamation suit brought against rival network ARY Network Ltd. and its Chief Operating Officer in respect of programs broadcast in the U.K.  Mir Shakil claimed that over a twelve month period the ARY Network mounted a “campaign” of harassment and defamation against him. The Court rejected the harassment claim but found that ARY had failed to establish sufficient defenses for the alleged defamation. The Court said the offending allegations were distinctive and very serious and went to "the core attributes" of the Claimant's personality. Furthermore, they were published to tens of thousands of people within the U.K. and there had been no withdrawal or apology. 


The Case of Ruslan Gansanovich Ginatullin 
Decision Date: December 14, 2016 
Court No. 2 of the Pavlodar Region of Kazakhstan sentenced Ruslan Gansanovich Ginatullin to 6 years’ imprisonment for inciting hatred against ethnic Russians and being a member of a criminal organization. The case was instituted after Mr. Ginatullin posted two videos on his social media accounts that portrayed Russians as racists and called on viewers to reject Kremlin’s “propaganda”. In reaching its decision, the court found that Mr. Ginatullin had disseminated the videos by posting them on the “wall” of his social media accounts and the court also relied heavily on expert testimony to conclude that the videos incited hatred towards ethnic Russians. 

The Case of Vladimir Luzgin 
Decision Date: June 30, 2016 
The Perm Regional Court in Russia convicted Vladimir Luzgin of intentionally disseminating false information about the USSR’s involvement in World War II by publishing an article that alleged that communists cooperated with Nazi Germany to invade Poland. The court reasoned that Mr. Luzgin was educated enough to know that the article contained false information and that its publication might have contributed to the rehabilitation of Nazi ideology. Mr. Luzgin was fined RUB 200,000 (approx. $3,400). 

North America

In re 381 Search Warrants Directed to Facebook, Inc. 
Decision Date: April 4, 2017 
The New York State Court of Appeals affirmed that internet service providers cannot appeal a judge's decision to issue search warrants in a criminal case, even in situations where the internet service provider believes the search warrants violate its users' constitutional rights. In July 2013, the lower court of New York issued 381 warrants that required Facebook to hand over the personal data of its users implicated in a Social Security Disability fraud criminal investigation. Facebook filed a motion to quash the warrants arguing that they were unconstitutionally overbroad, violated the privacy rights of their users, and had serious Fourth Amendment implications. The lower court denied the motion finding that Facebook did not have the standing to raise constitutional concerns on behalf of its users. The Court of Appeals concluded that it was unable to rule on the constitutional issues and was constrained by law to dismiss Facebook's appeals because it lacked statutory authority and therefore did not have jurisdiction to review a determination in a criminal proceeding. 

This case dealt a blow to those seeking to expand internet privacy protections and the attempt by Facebook to fight what it considers to be fishing expeditions by prosecutors.  Facebook has said it is considering its options and whether to take the case to the federal courts. 

Nwanguma et al v. Trump et al 
Decision Date: March 31, 2017 
The U.S. District Court for the Western District of Kentucky Louisville Division upheld protesters right to claim for damages on various counts including  assault and battery against audience members who attacked them, and against Trump and his campaign for inciting violence and negligence. Three individuals attended a Donald Trump for President rally with the intent to peacefully protest but when then-Presidential Candidate Donald Trump noticed them in the crowd he stated, "get 'em out of here." In response, audience members Heimbach and Bamberger, as well as an unknown individual, began to physically attack the protesters in an alleged effort to remove them from the hall.  Applying the three-part test from Brandenberg v. Ohios, the Court found it plausible that Trump’s speech advocated the use of force; that whether or not the Defendants intended for the violence to occur is a matter to be litigated; and that the requirement that violence was likely to result was met by allegations that violence actually occurred. Notably, the District Court rejected the defense that Trump’s speech was constitutionally protected speech under the First Amendment, stating "The law is clear....that '[s]peech that falls within th[e] category of incitement is not entitled to First Amendment protection."  With regard to the negligence claim, the Court reasoned that the complaint sufficiently established that Trump had a duty of care to the Plaintiffs and their harm was foreseeable.  In these circumstances,  the Court found the Plaintiffs’ incitement to riot claim plausible and denied the motion to dismiss. 

J. Hale referred the matter to Magistrate Judge H. Brent Brennenstuhl for resolution of litigation planning 

Elrod v. Burns 
Decision Date: June 28, 1976 
The U.S. Supreme Court ordered the lower court to grant a preliminary injunction in favor of employees who were threatened with discharge from their posts at the Cook County, Illinois Sheriff's Office due to their imputed political opinions. Following the election of a Sheriff from the Democratic political party, individuals in his office who failed to align with or did not have the express support of the Democratic Party were threatened with discharge from their employment with one individual actually being discharged.  The Court reasoned that patronage employment to the extent that it compels or limits political belief and association was completely contrary to the First Amendment. However, it acknowledged that the First Amendment was not absolute and restraints were permissible but only on certain conditions and for appropriate reasons: the state action must meet a standard of exacting scrutiny; the action cannot merely be justified by the existence of a legitimate state interest, that interest must be paramount; and the burden falls on the state to prove the existence of such a vital interest. The Petitioners in this case had failed to meet the exacting standard required and the employees had a valid claim for relief. Further, the employees were entitled to injunctive relief because First Amendment interests were either threatened or had been impaired and the loss of First Amendment freedoms unquestionably constitutes irreparable injury. 

Latin America


Graziani v. El Mercurio 
Decision Date: January 21, 2016 
The Supreme Court of Chile applied the right to be forgotten doctrine and ordered the El Mercurio newspaper to delete all its news articles referring to criminal proceedings against Mr. Graziani. Aldo Graziani filed a writ of protection and asked the Supreme Court to order El Mercurio newspaper to delete a 10-year-old news article about a criminal proceeding against him. He alleged that the news article violated his privacy and human dignity and impeded his social reintegration. The Court reasoned that because the article had been published a decade ago, the right to freedom of expression had to give way to the right of social integration and human dignity. In so doing it said that foreign jurisprudence had developed several criteria in order to balance these competing rights, one of them being the time factor. The Court said this does not mean that information will be deleted from every record but that access to that information will only be available from its original sources to those genuinely interested in it or for research purposes. 

Other Noteworthy News

Watch John Oliver´s hilarious "Last Week Tonight" calling for Americans to defend net neutrality rules:

Tow Director Emily Bell writes for The Guardian. 

"This is my truth - tell me yours" 
 The Forensics of Fake News
Priebus: Trump Considering Amending or Abolishing
1st Amendment

Reversed Conviction on Incitement from Russia 

On April 25, an appeals court in Southern Russia reversed a conviction of an Imam for incitement to hatred towards communists. Charges were levied on the Imam in relation to a comment that he posted online in November 2015 to an article on the ban on wearing the hijab in China.  In it, he foreshadowed that the heavens will punish Chinese communists. The Imam’s main defense was that his account was hacked, which the prosecution managed to refute. 

The appeals court judge held that requesting divine intervention could not be equated to incitement to hatred or xenophobia. Quoting the judge, “God himself is not active in public life, and appeals to him cannot be equated to incitement to hatred.” 

Columbia Global Freedom of Expression seeks to advance understanding of the international and national norms and institutions that best protect the free flow of information and expression in an inter-connected global community with major common challenges to address. 

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