February 15, 2016
Dear Friends,

This week we are featuring the recent landmark ruling from the US Supreme court, Matal v. Tam, which affirmed that denying registration for trademarks that "may disparage any persons" was facially unconstitutional under the First Amendment. In another case from the US, an appeals court upheld and increased sanctions against a Judge who had mailed a campaign flyer which contained content that was substantially false and therefore not subject to the protections of the First Amendment. A US district court ruled that Google must produce electronically stored information that was located abroad, in relation to two criminal investigations.

We are also featuring three right to information decisions. Two from the European Court of Justice denied access to documents due to the sensitivity of the content and their potential for undermining the public interest. The third, from the Federal High Court of Nigeria held that the salaries of high-level officials at the Central Bank of Nigeria (CBN) do not constitute personal information and should be disclosed under the Freedom of Act (FOIA).
Enjoy reading the case analyses and we welcome your feedback!
South African court affirms that cameras in court are constitutional and necessary to support open justice and transparency. Read the  Op-Ed by Dario Milo, partner at Webber Wentzel attorneys and Columbia Global Freedom of Expression Expert, where he discusses the Henri Van Breda trial and how South African jurisprudence has now reached a point of no return on the presence of cameras in court.
Facebook and Twitter are being used to manipulate public opinion – report. Nine-country study finds widespread use of social media for promoting lies, misinformation and propaganda by governments and individuals.

Turkey: ARTICLE 19 submits an expert opinion to Istanbul's 26th High Criminal Court examining the charges against prominent novelists and political commentators, Ahmet Altan and Mehmet Altan.

Arab Defamation Laws: A Comparative Analysis of Libel and Slander in the Middle East by Matt J. Duffy, assistant professor in the School of Communication and Media at Kennesaw State University in Georgia, USA and Global Freedom of Expression Expert, & Mariam Alkazemi.17 Apr 2017 Journal Communication Law and Policy , Volume 22, 2017 - Issue 2


Gabi Thesing and Bloomberg Finance LP v. European Central Bank

Decision Date: November 29, 2012
The European Court of Justice (ECJ) upheld the decision of the European Central Bank (ECB) not to release documents to a journalist and Bloomberg News concerning economic policy. Bloomberg News had applied to the ECB, for access to documents concerning the use of derivative transactions in financing deficits and managing government debt. The ECB refused on the basis of the protection of the public interest regarding the economic policy of the European Union (EU) and Greece. The Court pointed out that where disclosure of a document undermined the public interest, the ECB was obliged to refuse access. The Court observed that at the time when the refusal was adopted, the European financial markets were in a very vulnerable environment, and that the release of the documents could have potentially mislead the public as well as financial market participants, thus adversely impacting the effective conduct of the economic policy in [Greece] and the Union.   
Jose Maria Sison v. Council of The European Union
Decision Date: February 1, 2007
The European Court of Justice (ECJ) dismissed an appeal by Jose Maria Sison for the release of documents held by the Council of the European Union. Mr. Sison requested access to documents that had led the Council to include him in a list of persons whose funds and financial assets were to be frozen and which revealed the identity of the European Union (EU) Member States that had provided supporting documentation. The Court reasoned that the requested documents concerned persons or entities suspected of terrorism and fell within the category of sensitive documents which must not be disclosed to the public so as to protect the effectiveness of the operational fight against terrorism and public security. The Court said that the European Parliament, Council and Commission enjoy a wide discretion in respect of access to documents that fall within the category of sensitive documents and the Court's review of the European institutions' decisions refusing access to these types of documents is limited to verifying whether the procedural rules been complied with, the facts have been accurately stated, and whether there has been a manifest error of assessment of the facts or a misuse of powers. In this case the Court found no reason to interfere with the European institutions' decisions.

North America

United States

Matal v. Tam
Decision Date: June 19, 2017
The U.S. Supreme Court affirmed that the disparagement clause in the Lanham Act denying registration for trademarks that "may disparage any persons" was facially unconstitutional under the First Amendment. The U.S. Patent and Trademark Office (PTO) refused an Asian-American rock band registration of a trademark in the name of THE SLANTS on the basis that it fell foul of the disparagement clause that denies registration to a trademark if it “[c]onsists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” The Court reasoned that, by denying registration for trademarks that may disparage people living or dead along with "institutions, beliefs or symbols", the disparagement clause constituted viewpoint discrimination and was therefore unconstitutional under the First Amendment. It rejected the Government's argument that trademarks are “commercial speech” because, it said, even commercial speech is not subject to the government’s viewpoint discrimination. The Court also rejected the Government's attempt to pass off trademarks as government speech, which affords a speaker no First Amendment protection at all, because to do so would enable government to silence the expression of disfavored viewpoints.
In the Matter of The Hon. Stephen O. Judge-Elect Callaghan
Decision Date: February 9, 2017
The Supreme Court of Appeals of West Virginia upheld and increased sanctions recommended by the Judicial Disciplinary Board ("the Board") on Judge-Elect Callaghan for making substantially false statements in a campaign flyer. Callaghan mailed a flyer emblazoned with photographs of his rival Judge Johnson and President Obama with the caption “Barack Obama & Gary Johnson Party at the White House . . . .”  and, in a mock-up of a Lay-Off Notice, stating that Judge Johnson was entertaining himself  at the White House while Nicholas County lost hundreds of jobs on account of Obama's coal policies.The Court reasoned that while the First Amendment gave the highest level of protection to political speech, judges carried out a different role to politicians and were held apart from the typical hurly-burly of political life and partisanship. Applying the “substantial truth doctrine,” the court found that, taken as a whole, the flyer was substantially false and therefore not subject to the protections of the First Amendment. Accordingly, the Court held that the Rules in the Codes of Conduct banning knowing or reckless false statements were constitutional. Further, maintaining the impartiality and integrity of the judiciary was of the utmost importance.
In re Search Warrant No. 16-960-M-01 to Google
Decision Date: February 3, 2017
The U.S. District Court for the Eastern District of Pennsylvania granted the Government's Motions to Compel requiring Google to produce electronically stored information that was located abroad, relating to the subjects of two separate criminal investigations. Applying a two-part test used by the U.S. Supreme Court in Morrison v. Nat'l Australia Bank Ltd  and subsequently by the Second Circuit in Microsoft Corp.,  the Court reasoned that although the warrant provisions of the Stored Communications Act ("SCA") were not intended to apply abroad, in this case the search element of the warrant took place in the U.S. when the data was disclosed to and reviewed by the Government and not where and when it was collected which may have been on servers outside the U.S. Accordingly, the Court held that the execution of the warrants did not constitute an unlawful extraterritorial application of the SCA.



Uzoegwu F.O.C. Esq v. Central Bank of Nigeria & Attorney-General of the Federation
Decision Date: July 5, 2012
The Federal High Court of Nigeria held that the salaries of high-level officials at the Central Bank of Nigeria (CBN) do not constitute personal information and should be disclosed under the Freedom of Act (FOIA). The Applicant, Uzoegwu, asked the CBN to provide information about the monthly salaries of the Governor, Deputy Governor and Directors of the Bank. The Bank failed to respond. The Court reasoned that the salaries of officers of public institutions were such an "intrinsic part of their public employment or appointment that if the legislature intended to exempt them as personal information" in the personal information exceptions to disclosure, it "would have stated so clearly" in the FOIA. The Court further held that the legislation indicated that “where the interest of the public is in clash with the individual interest . . . the collective interest must be held paramount”.

Kazakhstan: On June 15, India and Pakistan joined China, Russia, Kazakhstan, Kyrgyzstan, Tajikistan and Uzbekistan as members of the Shanghai Cooperation Organization, an intergovernmental organization focused on security and economic development. Albeit small in membership, the Organization covers more than 40% of the world’s population. The members signed a Statement to counteract international terrorism that reiterates the inadmissibility of violation of sovereignty in the war against terror. The Statement also announced the members’ support for Russia’s proposed UN Security Council draft resolution on combating the dissemination of the terrorist ideology, which expands the UN Security Council Resolution 1624 of 2005. The proposed resolution calls on the UN member states to prohibit by law incitement to commit terrorism and to punish such crimes as strictly as the acts of terrorism.
On June 17, 2017, Foreign Policy magazine’s website was blocked in Kazakhstan. The blocking seems to be related to an article published a few days earlier critical of Kazakhstan’s World’s Fair Expo, titled “Kazakhstan Spent $5 Billion on a Death Star and It Doesn’t Even Shoot Lasers”. In addition to blocking the website, the director of the Expo claimed that Foreign Policy’s journalist never even visited the Expo, prompting the journalist to share a picture of his visa to Kazakhstan on Twitter.
Turkmenistan: On June 25, it was reported that 12 military officers were convicted of spreading non-traditional Islam and undermining the constitutional regime of Turkmenistan. The officers received sentences ranging between 10 and 23 years in prison. Allegedly, the officers were investigated after a military recruit complained that he was forced to remove a bracelet because it did not comply with Islam. The recruit was also forced to attend evening meetings where the officers discussed the meaning of true Islam. Over 70 persons were arrested as part of the investigation. Those not convicted were relocated to serve on the Turkmen-Afghan border and stripped of rank and military awards.
Uzbekistan: On June 20, 2017, the Association for Human Rights in Central Asia (AHRCA) announced that Nuraddin Jumaniyazov, an arbitrarily imprisoned human rights defender, died in prison in December 2016. The news of his death came out only now due to the authorities failing to notify his defense attorney. His defense attorney was unable to meet with Mr. Jumaniyazov since his conviction in 2015. It is also alleged by AHRCA that he not provided with adequate medical care to treat diabetes, which led to the deterioration of his health. It should also be noted that his lawyer, Polina Braunerg, died from a stroke in May 2017. She and her family complained that the authorities prevented her from seeking medical aid, by denying her an exit visa to undergo medical treatment in Russia or to even leave her city of residence to see a heart disease expert in another region of Uzbekistan.

Other Noteworthy

Free to State: A New Era for the First Amendment. 
The Washington Post brought together journalists, scholars, business leaders and advocates to explore how the interpretation of our First Amendment rights have evolved in principle and practice, and what it means for a modern democracy.

Symposium: Is Free Speech Under Threat in the United States? COMMENTARY asked a wide variety of thinkers, and broadcasters to respond to this questions: Is frees speech under threat in the United States? Read the twenty-seven opinions on the state of freedom of expression in the US..    
Transparency International/UNESCO Dialogue: The role of civil society and justice systems in the implementation of the targets in SDG 16, with the participation of Ministers from the Supreme Courts of Brazil, Chile, Perú and Uruguay, the General Prosecutor of Guatemala, UNESCO’s Assistant Director General for Communication and information and the president of Transparency International. Monday, 10 July, 2017, 9:00 a.m. – 2:00 p.m., Conference Room 8, United Nations Headquarters, New York. R.S.V.P.: (no later than 5 July) For more information please contact Mr. Ricardo de Guimaraes Pinto at
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