May 31, 2017
Dear Friends,

This week decisions hail from the U.S., U.K., and Kazakhstan. In Turner v. Driver a US appeals court found that U.S. Supreme Court and Circuit Court precedents demonstrate a First Amendment right to record police activity for future cases, subject only to reasonable time, place, and manner restrictions -- which is direct contrast to Fields v. City of Philadelphiacurrently on appeal.

From the UK, The Investigatory Powers Tribunal ruled that the obtaining of Bulk Communications Data (BCD) by Security and Intelligence Agencies from telecom operators was lawful under domestic law but that both the BCD and the Bulk Personal Datasets (BPD) regimes failed to comply with European Convention of Human Rights (ECHR) principles due to non transparent collection processes. In Appleby v. U.K., the ECtHR  concluded that there is not yet any emerging consensus internationally on the constitutional right of free speech in a privately owned shopping mall. 

In Kazakhstan, a city Court penalized the political speech of local activists through the imposition of a harsh prison sentence, coupled with a fine and a ban on civic activities. For those interested in that region, don't miss this week's feature section Glance on Freedom of Expression in Russia and Central Asia by Bach Avezdjanov which highlights recent legal developments. 
Enjoy reading the case analyses and we welcome your feedback!
New Publication by Global Freedom of Expression Partner!

Tainted Leaks:  Disinformation and Phishing  With a Russian Nexus

This report describes an extensive Russia-linked phishing and disinformation campaign. It provides evidence of how documents stolen from a prominent journalist and critic of Russia was tampered with and then “leaked” to achieve specific propaganda aims.


Win for freedom of expression as penal provision declared unconstitutional
Doctors Argue That Female Genital Mutilation Is Protected Under First Amendment
Lawyers plan to claim genital cutting is allowed as a religious right, but legal experts say the First Amendment doesn't bend that far.


United Kingdom

Privacy International v. Secretary of State for Foreign and Commonwealth Affairs et al.
Decision Date: October 17, 2016
The U.K. Investigatory Powers Tribunal ruled that the obtaining by Security and Intelligence Agencies of Bulk Communications Data (BCD) from telecom operators was lawful under domestic law, namely Section 94 of the Telecommunications Act 1984, but that both the BCD and the Bulk Personal Datasets (BPD) regimes failed to comply with European Convention of Human Rights (ECHR) principles until their existence and processes were made public. The campaign group, Privacy International, claimed that the acquisition and use of bulk personal and communications data by MI5, MI6 and Government Communications Headquarters (GCHQ) infringed the right to private life under Article 8 ECHR. The Foreign Secretary, the Home Secretary and the three security services argued that the use of these powers was lawful and essential for the protection of national security. The Court reasoned that the obtaining of BPD and BCD under rules and arrangements that were not publicly accessible fell foul of the ECHR Article 8 requirement that such measures must be "in accordance with law" because the rules were not sufficiently foreseeable or accessible and were not subject to adequate oversight.
Appleby v. U.K.
Decision Date: May 6, 2003
The European Court of Human Rights held that an environmental group’s rights to freedom of expression and freedom of assembly had not been breached when the private owner of a town center refused permission for them to campaign and collect signatures on its premises. The environmental group, Washington First Forum, sought access to a shopping mall in an effort to campaign against a proposal to build on the only community playing field in the vicinity. The Court found that States have a positive obligation to regulate the access to private property only when “the bar on access to property has the effect of preventing any effective exercise of freedom of expression or it can be said that the essence of the right has been destroyed.”  However in this case, the Court found that the Applicants had not been effectively prevented from communicating with their fellow citizens as they could and had exercised their rights through other means.


The Case of Max Kebenuly Bokaev and Talgat Tulepkalievich Ayanov
Decision Date: November 28, 2016
The Court No. 2 of Atyrau City, Kazakhstan convicted two activists of disseminating false information, inciting social discord, and violating laws regulating public assembly. The Court relied on expert and witness testimony to conclude that the activists misinformed the masses to agitate them against government officials and people of Chinese ethnicity. The Court held that these activities were in violation of national laws and the International Covenant on Civil and Political Rights. In doing so, the Court dismissed the activists’ defense that they simply disseminated already public information. Both activists were sentenced to five years in prison, fined $1,500, and banned from civic activities for three years after their release.

North America

United States

Turner v. Driver
Decision Date: February 16, 2017
The U.S. Court of Appeals for the fifth circuit found that the right to film the police in public under the First Amendment was not clearly established at the time of the incident and hence dismissed Turner's claim. Philip Turner, unarmed, was detained for video recording a police station on a public sidewalk and for refusing to show his identification. The Circuit Court, however, stated that subsequent relevant U.S. Supreme Court and Circuit Court precedents "demonstrate that a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions" and thereby established such a right for the future. The Circuit Court also found that Turner's Fourth Amendment rights were violated for unlawful arrest without probable cause.
This contrasts with the more restrictive interpretation in Fields v. City of Philadelphia where the Court held "that video recording or photographing police activity without the intent to protest, chronicle, criticize or challenge the activity does not constitute expressive conduct protected under the First Amendment." Fields v. City of Philadelphia is currently on appeal.

RUSSIA: On May 26, 2017, the Russian Supreme Court upheld an order to liquidate a regional office of Jehovah’s Witnesses on the grounds that the organization disseminated banned extremist pamphlets. This is a continuing trend. On April 20, 2017, the Russian Supreme Court has already declared that the Administrative Center of Jehovah’s Witnesses was an extremist organization and banned its activities in Russia.  
On May 25, 2017, a new bill stripping privacy from online messengers’ users was introduced for review to the Russian Duma (Parliament). The bill demands that messengers identify their users, prevent sharing of information that violates Russian law, and allow the Russian authorities to disseminate socially important information, such as emergency messages.  
KAZAKHSTAN: On May 24, 2017, the lower chamber of the Kazakh Majlis (Parliament) adopted a law that prohibits persons to nominate themselves for the post of the country’s president. The law allows only registered civil society organizations and political parties to nominate candidates.
KYRGYZSTAN: On May 22, 2017, The Supreme Court rejected an appeal brought by two prominent human rights activists alleging that the President of Kyrgyzstan insulted them when he claimed that their work was motivated by their need to satisfy their foreign grants. The President’s lawyers defended his actions, arguing that what he said was true – the activists received foreign funding - and that he had no intent to insult them.
UZBEKISTAN: On May 19, 2017, Polina Braunerg, a human rights activists passed away form natural causes. She has attempted to leave the country for treatment since 2014, but the authorities denied her freedom of movement to even seek treatment outside of her city of residence.

Other Noteworthy

The Centre for Law and Democracy (CLD) is seeking a Legal Officer to begin as soon as possible. They are looking for a successful, highly motivated person who will work from Halifax, Canada. The successful applicant will be rewarded with exciting legal work, high level representational opportunities and the chance to travel globally.
Anti-Rights groups have been increasingly present and effective in international policy conferences, including the United Nations, targeting human rights, with a particular dislike for freedom of expression, sexual orientation and sexual and reproductive rights. A first report on who they are and how they work:
It is not only States that target artists and freedom to create and perform; so do “extremist” groups, however they are named or defined (“terrorist”, “fundamentalist”, etc.); altogether highlighting a global pattern of attacks against artists:
A New Book by Floyd Abrams provides a lively overview of the unique protections for freedom of speech in America. Excerpts published in the Washington Post below:
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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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