May 3, 2016
Dear Friends,

On May 3, 1996, the Inter-American Commission on Human Rights ruled in Francisco Martorell v. Chile that the Chilean State violated an author’s right to freedom of expression because the banning of his book constituted prior censorship which is prohibited by the American Convention on Human Rights. 
Twenty-one years later, in recognition of World Press Freedom Day on May 3rd, we are celebrating the resilience and resistance of judges and lawyers who, confronted with difficult environments or marked deterioration of the human rights environment, still uphold and protect fundamental freedoms, including the right to freedom of expression.  These comprise the justice sector in Africa, including in Zimbabwe, Zambia, Kenya, Bostwana to name a few.  They also include supra-national, regional courts in Europe, Africa, and Latin America acting as formidable tools and instruments for human rights protection, and judicial integration.  And to this list can now be included judges and lawyers in the United States, as we have highlighted in previous weeks.   
Newly published decisions this week also highlight the protection of press freedom, recently and in the past.  From Germany we have a recent decision protecting freedom of the press in Wowereit v. Axel Springer SE and another, Anas M. v. Facebook Ireland Limited, where the court denied an injunction which would have required Facebook to take down a selfie posted with Angela Merkel. In the seminal case Romanenko v. Russia, the European Court of Human Rights found that the Russian courts had violated three newspaper founders' right to freedom of expression by holding them liable for defamation.

Jurisprudence in Focus this week highlights the landmark press freedom case The Sunday Times v. United Kingdom as well as a select number of positive rulings from different parts of the world dealing with prior censorship and blanket bans on certain types of reporting. 

A special thanks to all our readers who suggested publications and content for this week's newsletter! 

For the Record 

Is It Time For the Media to Intervene in Strasbourg? By Alina Pravdychenko and Vita Volodovska, Centre for Democracy and Rule of Law (CEDEM), Kyiv, Ukraine; and Richard N. Winfield, professor of comparative mass media law, Columbia Law School and co-chair, media law working group, International Senior Lawyers Project. This new article argues that the media community in Europe should act with urgency to make greater use of ‘third party interventions’ before the European Court of Human Rights in Strasbourg.

Recent Freedom of Expression Developments in Scandinavia by Amalie Bang, LL.M., Legal Officer, Columbia Global Freedom of Expression. This article surveys recent case law from Denmark, Sweden, Norway and Finland on topics such as hate speech and freedom of expression online. The article gives a good overview of what is happening in the freedom of expression field in Scandinavia and shows that also in this part of the world social media is making it difficult to draw the line on what can be said and in which context.

The Right to Insult in International Law, By Amal Clooney and Philippa Webb
States all over the world are enacting new laws that criminalize insults, and using existing insult laws with renewed vigour. This article examines state practice, treaty provisions, and case law on insulting speech and concludes that insulting speech is currently insufficiently protected under international law and regulated by confused case law and commentary.

Positive Developments in Freedom of Expression




Anas M. v. Facebook Ireland Limited
Decision Date: March 7, 2017
The Landgericht Würzburg, a First Instance Court in Germany, refused to grant an injunction forcing Facebook to take down a selfie of the Claimant, a Syrian refugee, with the German Chancellor Angela Merkel which showed up in anonymous posts on Facebook, falsely accusing him of taking part in several terrorist attacks in Berlin in 2016. The Court reasoned that Facebook was neither the perpetrator nor a participant in the alleged defamation of the Claimant and had not in any way manipulated the content, which would have made it legally responsible for the distribution. The Court also said that, under the European Union's electronic commerce rules, Facebook, as a 'hosting provider' was not obliged to 'proactively' search for and remove content unless the content is reported and is clearly unlawful. Following the report, Facebook used geo-blocking to prevent access within Germany and Austria which was a sufficient measure for the handling of reported unlawful content.
Wowereit v. Axel Springer SE
Decision Date: September 27, 2016
In September 2016, the Supreme Court of Appeal in Germany (Bundesgerichtshof) overruled the lower courts’ finding that a newspaper had violated the personality rights of the Mayor of Berlin by publishing photographs of him having drinks on the eve of a significant parliamentary vote on his competence. The Court found that the publisher of the German newspaper BILD-Zeitung, which is part of the publishing house Axel Springer SE, was justified in publishing the photographs as they were published in the context of a political event and, therefore, contributed to a story of public interest. In reaching this conclusion, the Court reasoned that the photograph provided the public with information about his behavior on the night before a vote that could decide the future of his political career, and could then help inform public opinion on his character.


Romanenko v. Russia
Decision Date: October 8, 2009
The European Court of Human Rights found that the Russian courts had violated three newspaper founders' right to freedom of expression by holding them liable for defamation for republishing allegations from an official public statement. The newspaper had reproduced statements made by a panel of State and municipal employees and private businessmen alleging that there were irregularities in the timber business that were connected to the involvement of the regional authorities in timber purchases. In its judgment, the Court was critical of the domestic courts' failure to balance the right to freedom of expression against the need to protect reputation. Furthermore, Court criticised the domestic courts' artificial reading of a defence under domestic law that should have been open to the founders of the newspaper.

Jurisprudence in Focus


Francisco Martorell v. Chile
Decision Date: May 3, 1996
On May 3, 1996 the Inter-American Commission on Human Rights concluded that the Chilean State violated Martorell’s rights to freedom of expression when banning his book from publication. Martorell’s book “Diplomatic Impunity,” ultimately published in Argentina, referred to circumstances that led to a former Argentinean ambassador’s departure from Chile. Following the publication in Argentina, several people filed criminal charges against Martorell for insult and slander resulting in a court order to ban the book. The Inter-American Commission cited Sunday Times v. the United Kingdom (No. 1) from the European Court of Human Rights noting that the principle of freedom of expression is subject to a number of exceptions which must be narrowly interpreted and that restrictions on an individual’s expression in turn impact society’s right to receive the information.  The Commission considered individuals’ rights to honour and dignity but it in this case concluded that the decision to prohibit the entry, circulation and distribution of the book in Chile would constitute an act of prior censorship, which is prohibited by the American Convention on Human Rights, and therefore amount to an unlawful restriction of the right to freedom of expression.

United Kingdom

The Sunday Times v. United Kingdom
Decision Date: April 26, 1979
The European Court of Human Rights held that an injunction restraining the Sunday Times from publishing an article related to a settlement being negotiated out of court violated its freedom of expression. In 1972 the British newspaper the Sunday Times published articles concerning the settlement negotiations for the "thalidomide children," following pregnant women's' use of the drug thalidomide which resulted in severe birth defects. The newspaper had criticized the settlement proposals and subsequently,  an injunction was issued based on the claim that future publications would constitute contempt of court. Although the Court found that the interference was proscribed by law and pursued the legitimate aim of safeguarding the impartiality and authority of the judiciary, it was not necessary in a democratic society. The Court observed that the right to freedom of expression guarantees not only the freedom of the press to inform the public but also the right of the public to be properly informed, and the thalidomide disaster was a matter of undisputed public concern. The court noted that the proposed article was moderate and balanced in its arguments on a topic that had been widely debated in society and therefore the risk of undermining the authority of the judiciary was minimal. The Court concluded that the interference did not correspond to a social need sufficiently pressing to outweigh the public interest in freedom of expression within the meaning of the European Convention.


The National Association of Book Publishers v. the President of Brazil
Decision Date: July 5, 2015
The Brazilian Supreme Court ruled that biographers do not need to obtain prior authorization from the subject of a biography, nor from his family or agents, as a condition of publication. The National Association of Book Publishers applied to the Court for a Declaration of Unconstitutionality claiming Articles of the Brazilian Civil Code requiring prior authorization to publish, expose, or use the image of an individual, disclose certain writings, and to broadcast the individual's speech were unconstitutional. The Court upheld the request reasoning that the fundamental right to freedom of expression rooted in the Brazilian Federal Constitution required the Brazilian Civil Code be interpreted so that there was no longer a requirement for prior authorization from the subject of a biography before publication. The individual and his family's right to privacy was protected by the publisher's liability to compensate an injured party if the publisher exercises his right to freedom of expression in a way that exceeds what is reasonable in a democratic society.

South Africa

Primedia Broadcasting v. Speaker of the National Assembly
Decision Date: September 29, 2016
The Supreme Court of Appeal of South Africa struck down two main provisions of Parliament’s rules and policies that prohibit live television broadcasting of incidents of disorder or altercation when Parliament is in session. The appeal had been brought by Primedia Broadcasting, an independent South African media company, and a number of local and international NGOs. The court reasoned that the provisions violate the right to an open Parliament and are unconstitutional and unlawful. The Court also found the government’s use of a device to temporarily disrupt cellular phones during the session without the permission of Parliament was unlawful.

United States

Garcia v. Montogmery County
Decision Date: March 8, 2017
Montgomery County settled a First Amendment lawsuit brought by photojournalist Mannie Garcia in which he claimed his rights were violated when police officers arrested, detained and prosecuted him for attempting to record what he believed was a display of excessive force by the police. Despite the County’s denials of Garcia’s allegations, its police department updated its policies after the incident to specifically note that the public has a right to record and photograph police officers. 

The case also attracted national attention as the U.S. Department of Justice (“DOJ”) filed a Statement of Interest in the action urging the federal court not to dismiss Garcia’s case after Montgomery County filed a motion to do so. In its Statement the DOJ wrote: “The United States is concerned that discretionary charges, such as disorderly conduct, loitering, disturbing the peace, and resisting arrest, are all too easily used to curtail expressive conduct or retaliate against individuals for exercising their First Amendment rights….Core First Amendment conduct, such as recording a police officer performing duties on a public street, cannot be the sole basis for such charges”.

Other Noteworthy News on World Press Freedom Day

Applications Open for ECPMF’s Journalist-in-Residence Programme
The ECPMF (European Centre for Press and Media Freedom) Journalists-in-Residence Programme offers media workers under threat a safe environment to rest, recover, and continue their journalistic work. “Media workers staying with us have been fighting for years to be able to work independently and without restrictions. They are long-experienced colleagues who often face massive threats in their home countries”, says Christian Schult, JiR programme coordinator at the ECPMF. The deadline to apply is 12 May 2017.

Summary Translation of the Luxleaks Court of Appeal Judgment of 15 March 2017,  prepared by Annelies Vandendriessche, Assistant in media law, Universite du Luxembourg 

Fundación para la Libertad de Prensa:  FLIP's latest yearly report on freedom of expression in Colombia during 2016 is available here in Spanish

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. 

For comments or inquiries please email us at 
Subscribe Now
Copyright © 2017 Columbia Global Freedom of Expression, All rights reserved.

Want to change how you receive these emails?
You can update your preferences or unsubscribe from this list

Email Marketing Powered by Mailchimp