April 18, 2016
Dear Friends,

This week we are featuring three decisions where courts had to balance the privacy rights of public officials against the competing right of freedom of expression, all turning on the public interest value of the speech: Olafsson v. Iceland, Mr. S v. Axel Springer SE and City of San Jose v. Smith. 

From Latin America, we have English translations of important decisions from Colombia and Venezuela: The Case of Leopoldo Lopez and  Afrodes and others v. President of the Republic. The Venezuela decision was recently upheld by Venezuela's Supreme Court, sentencing opposition leader Leopoldo Lopez to 14 years in prison based on charges of incitement and conspiracy for the the role he played in organizing protests against government policies.

Press Freedom Day is coming up May 3rd!  If you have publications on issues of press freedom, violence against journalists, or impunity that you wish for us to share on our website, please send them along!
We hope you enjoy reading the summaries below as well as the full analyses!

For the Record

Where Speech Goes, Repression Follows: The Global Trend of Criminalizing Online Speech by Columbia Global Freedom of Expression experts Nani Jansen Reventlow and Jonathan McCully

Religious Freedom Or Religious Preference? Neil Gorsuch Will Decide Next Week when the Supreme Court hears a case that they’ve been putting off since October Term 2016:  Trinity Lutheran Church of Columbia, Inc. v. Comer

The Columbia Law School Human Rights Institute is hosting the Human Rights in the U.S. Symposium on Friday, May 19th, 2017: “Localizing Human Rights in the new Era: Strategies for State and Local Implementation of Human Rights in the United States.”   Click here for the agenda and to register.

North America

United States

City of San Jose v. Smith
Decision Date: March 2, 2017
The California Supreme Court, reversing the Court of Appeal, held that email communications on private accounts by public officials are public records and thus subject to disclosure under the California Public Records Act (CPRA) if related to the conduct of public business. The privacy of the city employees did not outweigh the interest in transparency of public business as stated in the California state constitution. Ted Smith sued the city of San Jose, California under CPRA for the production of emails and text messages concerning redevelopment efforts in downtown San Jose from city employees’ personal accounts. The Court was concerned that if public officials could circumvent the law simply by using a different email account, or communicating through a personal device, sensitive information could routinely evade public scrutiny. The Court ruled that transparency in government activities was essential and while it was important to be sensitive to the privacy of public officials, this did not justify a categorical exclusion of all communications on personal accounts especially when personal communications unrelated to the conduct of public business could be redacted and excluded from public disclosure.



Olafsson v. Iceland
Decision Date: February 21, 2017
The European Court of Human Rights held that there had been a violation of the Applicant's right to freedom of expression and reversed the Supreme Court of Iceland's imposition of fines against the editor of a web-based media site for alleged defamation against a public figure.  The Court found that although the statements did cause harm to A’s reputation and that editors could be held liable under domestic law, the restriction was not necessary in a democratic society and could have a future chilling effect. The Court considered that the Applicant acted in good faith and made sure that the article was written in compliance with ordinary journalistic obligations to verify a factual allegation. The Court concluded that the Supreme Court had failed to give due consideration to the principles and criteria in balancing the Article 8 right to respect for private life, including reputation, and the right to freedom of expression under Article 10. It therefore had exceeded the margin of appreciation afforded to Member States and failed to strike a reasonable balance of proportionality between the measures imposed, restricting the applicant's right to freedom of expression, and the legitimate aim pursued.


Mr. S v. Axel Springer SE
Decision Date: September 30, 2014
In September 2014, the Supreme Court of Appeal in Germany overruled a lower court's decision and held that publishers of the newspaper ‘Bild-Zeitung’ could publish private e-mails between the Complainant, a former federal minister, and his illegitimate daughter’s mother in which he refused her request to pay alimony. The Court reasoned that the Complainant was a public figure and that the publication of emails disclosing that he had shirked financial responsibility for his illegitimate daughter and shifted the onus on to the State was a matter of public interest. It also held that the newspaper's freedom of expression outweighed any interest the Complainant might have to his general right of personality, including the right to be able to decide what happenes to any of his personal information. 

Latin America


The Case of Leopoldo Lopez
Decision Date: October 1, 2015
A Venezuelan court of first instance sentenced political opposition leader Leopoldo López to thirteen years and nine months in prison for public incitement, criminal conspiracy, and instigating arson and criminal damage. Additionally, the Judge convicted three students for the crimes of arson, criminal damage and public incitement. López organized a protest in opposition to Venezuelan government policies, during which clashes between protesters and State forces resulted in the death of two people and considerable damage to public property. The judge acknowledged Lopez’s many public speeches calling for peaceful protests, but found that the broad dissemination of his and his followers’ anti-government messages via social media coupled with his influence as a public figure were sufficient to prove his intent to incite violence and plan a conspiracy, which justified a maximum sentence.  Lopez’s defense asserted that the arguments of the Attorney General’s Office were politically motivated, that Lopez’s conduct did not meet the basic requirements for the crimes of conspiracy or incitement and that the Court denied all the evidence they tried to introduce.
In response to the legal irregularities of this judgment and its clear violation of international norms, the Inter-American Commission on Human Rights (IACHR) stated in a press release that “the IACHR’s Office of Special Rapporteur for Freedom of Expression has argued that the right to protest includes the right to choose a cause and its purpose; and nonviolent calls for a change of State policy, or even for a change of government itself, is part of specially-protected speech. The Commission would like to reiterate that responsibility for acts of violence during a protest must be ascribed individually.”


Afrodes and others v. President of the Republic
Decision Date: November 25, 2004
The Constitutional Court of Colombia reversed the second instance decision and instead dismissed an action to enforce constitutional rights brought by several non-governmental organizations (NGOs) in relation to defamatory statements made by the President of the Republic against them. The NGOs brought the action against the President of the Republic claiming that presidential addresses broadcast on national television which linked NGOs with terrorist groups not only violated their rights to honor and good name, but also endangered the life and integrity of individual petitioners. The Court held the action was inadmissible because it was not possible to identify the specific persons or organizations that the President was referring to in his statements.  However, the Court noted that statements made by senior officials are subject to veracity and impartiality duties and therefore, when the President of the Republic uses mass media to disseminate his opinions, he should employ a higher level of responsibility. The Court further noted that the President of the Republic also has the duty to guarantee special constitutional protections to certain groups —such as human rights defenders who are part of NGOs—and to not to increase their exposure to risk.

Other Noteworthy News

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