July 26, 2017

Dear Friends,

This week we are featuring cases from Kenya, South Africa, Russia, and the United States. We have analyzed the Bogoshi case that had a profound effect on media law in South Africa, by introducing a “reasonableness defence” for defamation. There are also two cases from the United States that deal with the digital world. In Wikimedia Foundation v NSA the court found that Wikimedia had standing to bring First and Fourth Amendment challenges against the NSA's upstream surveillance program. In Microsoft v United States the court discussed the issue of extraterritorial applications of US government's search orders. A Russian court in "7x7" v Roskomnadzor expanded potential liability of online publishers.

This month's Global Jurisprudence in Focus is on the Right to Truth. Emerging in Latin America in response to repeated State failures to explain, investigate, prosecute and penalize gross human rights violations, this is a right with multiple facets and links. It is about access to information and thus the duty of the State to respect freedom of expression. It is also about the duty of the State to conduct investigations and to release information regarding the findings. And access to truth is about respecting the fundamental right of equal access to reparation and remedies. Through truth being made public, victims and their families may find remedies and closure. As the cases highlighted below demonstrate, the right to truth is protected by courts outside Latin America. It is conceptualized as both an individual and a collective right, encompassing individuals and their families, whose rights have been violated, but also “other similar victims,” as well as communities and groups targeted by the violations and the society at large. The right to truth is about also a right to reparation and remedies, seeking to heal tragedies, restore dignity and thwart impunity.

On July 14, 2017, United Nations Secretary General, António Guterres unveiled the Plan of Action for Religious Leaders and Actors to Prevent Incitement to Violence that Could Lead to Atrocity Crimes. The project to develop the Plan of Action was led by the United Nations Office on Genocide Prevention and the Responsibility to Protect and developed over two years of consultations with some 232 religious leaders and actors from 77 countries. Columbia Global Freedom of Expression was one of a handful of partners involved in the 3 year-long initiative. We organized one expert meeting in Jordan in 2015 and contributed to other meetings and the drafting process.

United Nations Secretary-General António Guterres speaks at the launch of the Plan of Action for Religious Leaders and Actors to Prevent Incitement to Violence that Could Lead to Atrocity Crimes. Photo: UN Photo/ Eskinder Debebe

United Nations Secretary-General António Guterres speaks at the launch of the Plan of Action for Religious Leaders and Actors to Prevent Incitement to Violence that Could Lead to Atrocity Crimes. Photo: UN Photo/ Eskinder Debebe
On July 19, India’s nine-judge Constitution Bench of the Supreme Court began hearing arguments on whether the Constitution of India guarantees a fundamental right to privacy. The question is litigated as part of a case (K.S. Puttaswamy & Ors. v. Union of India & Ors.) challenging the Aadhar program that provides Indian resident with a unique 12 digit code based on bio-metric and demographic data. India’s attorney general is arguing that although there is a “common law right” to privacy, the Constitution of India does not include the right to privacy in any of its provisions. On the other hand, lawyers for the petitioners are arguing that privacy is inherent to liberty, which is a fundamental right in India’s Constitution. You could follow the case via the blog of, which is providing daily updates on the case. You could also read why our expert Mishi Choudhary believes that this case is the most important decision on the right to privacy in the world this year.



Kariuki v Attorney General
Decision Date:
The High Court of Kenya held that the salaries and allowances of Armed Forces personnel are not private or confidential and must be disclosed to the requester and the Court. The petitioner, a former Commander of the Kenya Air Force, alleged that he had suffered inhumane treatment amounting to torture and breach of his fundamental rights following his arrest, imprisonment and conviction after an attempted coup in 1982. Following his release, the petitioner instituted proceedings for declarations and reliefs for the purpose of which he applied for employment records and salary details including those of comparable officers. The Court reasoned that the petitioner had a constitutional right to the information requested under section 35 of the Constitution and that it was “completely unacceptable for the Attorney-General” to insinuate that the records requested could not be disclosed.

This case analysis was contributed by

South Africa

National Media Ltd. v Bogoshi
Decision Date: September 29, 1998
The South African Supreme Court of Appeal held that the media can raise a defense of “reasonable publication” in defamation cases. The City Press newspaper, owned by National Media had published a series of articles alleging misconduct by an attorney. The newspaper’s initial defense was that the statements were true, but it then sought to amend its plea to introduce a defense that it had not intended to defame the attorney, had not acted negligently and that, in terms of the protection for freedom of expression in the newly adopted Interim Constitution, the publication of the defamatory statements was not unlawful. The Court ruled that National Media’s defense was novel in that it challenged the unlawfulness and not the fault element of defamation by arguing that the publication was neither reckless nor negligent and there was no knowledge of the falsity of the statements. The Court reasoned that it was appropriate to follow the “reasonable conduct” approach adopted in the U.K., Australia and the Netherlands so that common law and the newly introduced constitutional protection for freedom of expression provided for a defense available to the media, namely that the publication of defamatory statements could, in the circumstances, be reasonable and therefore not unlawful. In this way the Court developed the common law and introduced a “reasonableness defence” into South African defamation law.

Europe and Central Asia


"7x7" v Roskomnadzor
Decision Date: October 3, 2016
The Miroviy Court of the Pushkin Judicial District fined an online publisher for failing to place an age disclaimer on a video shared through its platform, despite the platform’s logo including a 16+ designation. The video depicted a fictional member of the Russian parliament partying with prostitutes, misusing public funds, and using profanities. In its decision, the Miroviy Court relied on various employment and administrative laws to clarify that the definition of online “media production” includes the acts of creating and designing a website, as well as the dissemination of online content, thus expanding the potential liability of online publishers.

North America

United States

Wikimedia Foundation v NSA
Decision Date: May 23, 2017
The United States Fourth Circuit Court of Appeals (Court of Appeal) held that Wikimedia had standing to bring a case on the basis that the National Security Agency (NSA) had intercepted, copied, and reviewed at least some of its communications through “Upstream surveillance.” The Court of Appeal found Wikimedia’s allegations to be “plausible,” and granted it standing to bring complaints that “Upstream surveillance” violated the First and Fourth Amendments of the US Constitution. However, the Court of Appeal could not find to be “plausible” the allegation that, in the course of conducting “Upstream surveillance,” the NSA was “intercepting, copying and reviewing substantially all” text-based communications entering and leaving the US. The Court of Appeal reasoned that insufficient evidence had been produced to demonstrate that the operational scope of “Upstream surveillance” was such that “substantially all” text-based communications entering and leaving the US were subject to collection and review.

Microsoft v United States
Decision Date: July 14, 2016
The U.S. Court of Appeals for the Second Circuit declined to enforce a search that required Microsoft Corporation to access data stored in Dublin, Ireland, finding that this would be an unlawful extraterritorial application of the Act. Microsoft refused to comply with a warrant requiring it to produce the contents of an individual’s email account, allegedly used in connection with an investigation into narcotics trafficking, on the basis that the information was stored at datacenters based in Ireland. The Court reasoned that the order was a warrant, not a subpoena, because the private party, Microsoft, in being required to conduct the search and seizure became an agent of the government and the Fourth Amendment’s warrant clause applied to its actions. Further, the Court reasoned that the SCA was not intended to have extraterritorial application and only applied to material located in the U.S. Since the information was located in Dublin and the warrant would require Microsoft to reach out to the Dublin center to obtain it, enforcement of the warrant would constitute an unlawful extraterritorial application of the Act.

Global Jurisprudence in Focus: 
Right to Truth

El-Masri v. The Former Yugoslav Republic of Macedonia
Decision Date: December 12, 2012
The European Court of Human Rights held that Macedonia violated Articles 3 (prohibition of torture), 5 (prohibition against arbitrary detention), 8 (protection of private and family life), and 13 (right to effective remedy) but not directly Article 10 (freedom of expression) of the European Convention of Human Rights (ECHR) when it unlawfully detained a German national, El-Masri, subjected him to physical abuse and interrogation, handed him over to the U.S. for continued mistreatment, and refused to carry out a proper investigation into the circumstances. The Court found El-Masri’s Article 10 claim fell under the breaches of Articles 3 and 5, because these included failures to carry out an effective investigation of his allegations. It reasoned that the prosecuting authorities of the State should have endeavoured to undertake an adequate investigation and that their failure to do this had an impact on the right to truth about the circumstances of the case, rendering the case important not only for El-Masri and his family, but also for other victims of similar crimes and the general public who had the right to know what had happened.

Gudiel Alvarez et al. (Diario Militar) v. Guatemala             
Decision Date: November 20, 2012
The Inter-American Court of Human Rights held that the forced disappearances of 26 individuals that occurred from 1983-1985 during a period of internal armed conflict in Guatemala violated the constitutional rights to life, personal integrity, personal liberty, and juridical personality of the victims. Further, the Court reasoned that the State’s actions and subsequent failure to conduct a prompt, effective investigation into the forced disappearances also violated the right to truth and freedom of association of the victims’ family as well as the public at large.

Gomes Lund v Brazil
Decision Date: November 24, 2010
The Inter-American Court of Human Rights held that the relatives of members of the Araguaia Guerrilla movement who disappeared during Brazil's military dictatorship had a right to information about the disappearances. The Supreme Court of Brazil ruled for the families in 2007, but the Brazilian government failed to share documents that contained the requested information on the basis of national amnesty laws that prohibited any criminal investigations into the actions of the military dictatorship. The Inter-American Court stressed that the the State has a positive obligation to disclose as much information as possible for the purposes of public debate. This right is elevated when the information concerns victims of human rights violations, including the disappearances of individuals. Finally, the Court has established that in cases of human rights violations, the State cannot withhold information claiming confidentiality for national security or public interest when access to information is granted by the legal system or required in a judicial proceeding.

Family of Rosenda Radilla v. Public Prosecutor
Decision Date: March 4, 2009
The Information Commission of Mexico (Instituto General de Acceso a la Informacion Publica, or IFAI) held that the public prosecutor must release a preliminary report of an investigation related to the forced disappearance of Rosendo Radilla Pacheco under the final provision of Article 14 of the RTI Law. Because the preliminary investigations requested clearly entailed violations of fundamental human rights and possibly crimes against humanity, IFAI ruled that they were not protected and that there existed an overriding public interest in their disclosure. 

Toktakunov v Kyrgyzstan
Decision Date: April 12, 2006
The UN Human Rights Committee ruled that the right to information held by public bodies is grounded within the right to freedom of expression and found that Kyrgyzstan violated this right by not disclosing information concerning death sentences pursuant to secret bylaws. Youth Human Rights Group repeatedly and unsuccessfully requested information on the number of individuals sentenced to death in a certain period in Kyrgyzstan from the Ministry of Justice. However, the Ministry of Justice cited state secrecy law to refuse access to this information. Having failed in domestic courts, Toktakunov brought the complaint to the HRC, which found that Kyrgyzstan violated Article 19 by refusing to disclose the requested information because (1) the information sought is in the public interest; (2) criminal judgments are generally public; and (3) the ICCPR recognizes the right of individuals and the media to receive state-held information without requiring a demonstration of direct interest.

Tajikistan: Law enforcement authorities are threatening and exerting pressure on the relatives of members of the Islamic Renaissance Party of Tajikistan, which was declared extremist in 2016 and whose leaders were imprisoned. The latest wave of intimidation followed a conference held on July 9 in Germany where ten opposition activists participated. On July 10, a government security analyst condemned the activists and called coordinated opposition movements a threat to Tajikistan’s national security.

Turkmenistan: On July 18 it was reported that 40 persons were convicted for allegedly belonging to the Gulen Movement and received imprisonment sentences between 12 and 20 years. The 40, all men, either graduated or worked in Turkmen-Turkish schools. The trial was closed and it is uncertain under what laws the men were convicted, but it is known that they were also found guilty of violating article 135 of the Criminal Code which penalizes homosexuality. This is a continuing trend. In October 2016, 150 persons were arrested for allegedly belonging to the Gulen Movement. Most of them were released, but some received long prison sentences. Additionally, in February 2017, 18 persons were sentenced to up to 25 years in prison for similar allegations.

Russia: According to Google’s most recent transparency report on government content removal requests, Russia’s requests in 2016 grew almost five times with over 13,000 take-down requests. 85% of the requests were on the basis of national security. The vast majority of the content removal requests originated from Russia’s executive bodies rather than from the courts and concerned YouTube. Google complied with 72% of Russia’s removal requests.
On July 18, 2017, the Appellate Collegiate of the Supreme Court rejected the appeal of Jehovah’s Witnesses concerning the Supreme Court’s April decision approving the dissolution of the Jehovah’s Witnesses Managerial Center and its 395 regional affiliates across Russia.  

Other Noteworthy

The issue of territoriality when applying the right to be forgotten or de-indexed has entered a new chapter. The Conseil d’Etat, France’s highest administrative court, referred the dispute between the French data protection authority (CNIL) and Google over the legality of applying the right to be de-indexed globally to the Court of Justice of the European Union (CJEU). The Conseil d’Etat asked the CJEU to clarify how the right to be de-indexed should be applied, and most importantly whether it can apply outside of the borders of the European Union. 
The New York Times Magazine published a story titled "The Lonely Crusade of China’s Human Rights Lawyers" that thoroughly describes the plight of human rights lawyers and other activists in China.
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