June 20, 2017
Dear Friends,

This week we are featuring two decisions on the right to information as well as one on the right to protest and a US Supreme Court ruling on the Establishment Clause.  

Regarding the right to information, The European Court of Justice (ECJ) rejected arguments made by the Council of Europe that disclosing information on the identity of Member State delegations involved in policy proposals would undermine their deliberation process. The South African Supreme Court of Appeal found it was in the public interest to release a report documenting the maladministration of municipal funds.  

The German Final Court of Appeal Court refused to authorize a planned protest based on evidence that it would likely result in violence. In a seminal ruling from the United States, the Supreme Court found that the creation of a special school district to accommodate a religious community was a violation of the Establishment Clause of the First Amendment.

Enjoy reading the case analyses and we welcome your feedback!
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Berkman Klein fellow Nani Jansen Reventlow, launches “Catalysts for Collaboration”  website encouraging internet activists to collaborate across disciplinary silos and strengthen their digital rights litigation. It offers a set of best practices combined with a set of case studies. You can read more about the website and the project here.

In his latest report Special Rapporteur David Kaye examines the duty of States to refrain from excessive censorship and surveillance, and to protect and promote a free, open, and secure Internet. 
“Hard Questions” for Facebook:  Facebook is going “public” to explain its policies on difficult questions, asking for feedback and comments in the process. Its first “Hard Questions” post focus on how the platform responds  to the spread of terrorism online — including the ways they are working with others and using new technology.
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In Anti-Soros Feud, Hungary Adopts Rules on Foreign-Financed Groups. Defying warnings from the European Union and pleas by advocates for civil and political rights, Hungary’s government passed legislation to require nongovernmental organizations that receive foreign financing to identify themselves as such and to disclose their donors.


European Court of Justice

Access Info Europe v. Council of the European Union
Decision Date: March 22, 2011
The General Court of the European Court of Justice (ECJ) held that the Council of the European Union (Council) infringed Regulation No 1049/2001 by refusing to disclose information relating to the identity of Member State delegations making policy proposals. The Court reasoned that any exceptions to the public's right of access to European Parliament, Council and Commission documents must be strictly applied because the public right of access to the documents of the institutions is an integral part the democratic nature of those institutions. It also ruled that the purpose of Regulation No 1049/2001 is to give the public the widest possible right of access. Accordingly, it found that the risk that delegations would refrain from submitting written proposals if their identity was disclosed did not sufficiently undermine the decision-making process so as to justify the refusal of access to the requested information.


Mr. K, Mr. P, and Mrs. J v. Police Department of Rostock
Decision Date: June 6, 2007
The Bundesverfassungsgericht (Final Court of Appeal) refused to authorize a request for a protest to take place at the G8 Summit in Heiligendamm due to the risk that violence would occur. In its judgment, the Court admitted that a prohibition on a protest constitutes a profound infringement of the right to freedom of assembly, and doubted whether the reasons given by the police department to ban the protest were sufficient. Nevertheless, due to a violent demonstration in the neighbouring city of Rostock a few days prior to the planned protest in Heiligendamm and the announcement by individuals who took part in that demonstration that they would also take part in the protest in Heiligendamm, the Court rejected the appeal..

North America

United States

Board of Education of Kiryas Joel Village School District v. Grumet
Decision Date: June 27, 1994
The U.S. Supreme Court found a New York state law, which created a school district specifically for the Satmar Hasidic Jewish neighborhood, Kiryas Joel, was unconstitutional because the law impermissibly 'advanced' religion, and therefore, failed the second prong of the Establishment test set out in Lemon v. Kurtzman. As this was a case-specific creation of a district for a religious community, the Court reasoned there was no assurance that the next religious community seeking a school district of its own would receive one so the Court had no means of reviewing whether the government was preferring one religion to another, or religion to irreligion and the law therefore had the effect of advancing religion. Furthermore, the Court found that although the Constitution allows states to accommodate religious needs by alleviating special burdens, the impugned law crossed the line from permissible accommodation to impermissible establishment because there were several alternatives for providing bilingual and bicultural special education to Satmar children that did not implicate the Establishment Clause.


South Africa

Qoboshiyane NO v. Avusa Publishing Eastern Cape (Pty) Ltd.
Decision Date: November 21, 2012
The South Africa Supreme Court of Appeal upheld a decision of the Eastern Cape High Court which stated that information falling under one of the exemptions from disclosure under the Promotion of Access to Information Act (PAIA) must nevertheless be released if an overriding public interest in disclosure exists. The Court reasoned that a Member of the Executive Council (MEC), the cabinet of the provincial government, had failed in his legal obligation to weigh the harm that would arise from disclosure against the overriding public interest in disclosure of a report documenting the maladministration of municipal funds.

RUSSIA: The Russian Parliament overwhelmingly approved a first draft of the bill that would strip privacy from online messengers’ users. 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. To pass, the bill might have to go through at least two more reviews and be approved by President Putin.  
On June 16, 2017, it was reported that, an online publication, was fined for violating the Russian Federal Law on Combatting Extremism for re-publishing a news article from the Prosecutor General’s website. The issue with the article was that it contained the name of an organization banned in Russia. corrected the article and paid the fine, yet the original article on the Prosecutor General’s website still contains the allegedly illegal information.
UZBEKISTAN: The Ministry of Information of Uzbekistan officially denied that FerganaNews, an independent Central Asian news provider, is blocked in the country and recommended that users seek help from internet providers to receive access. The website has been blocked in Uzbekistan since 2005. The official denial came after Said Yanyshev used Uzbekistan’s new government complaint’s system to clarify the reason for the website’s blocking. 

Other Noteworthy

Are “creepy” accounts free speech?  The Canadian version of this question is well highlighted by the "CanadaCreep" Twitter account, which had amassed nearly 17,000 followers over the past year by posting hundreds of secretly recorded photographs and videos of women that focused on their breasts, buttocks and groins.  Twitter suspended the "CanadaCreep" account this week, but there are countless others like it that remain active, many of them operating within the bounds of Canadian law.  
Regulating “Cyberbullying”: a mine field for free speech? Law makers in the state of Utah have approved a new law that gives prosecutors the ability to send online bullies to jail for up to one year, and makes it a crime to post personal information about a person online that’s meant to intimidate, or abuse, or threaten, or harass, or frighten, or even disrupt the electronic communications of another person. Here is an Interview with a supporter of the new regulation.
Nobody Speak. Trials of the Free Press: documentary by American documentarian Brian Knappenberger debuts on Friday on Netflix focus on the high price of free speech with a timely and cautionary tale about the control of the message and the media. The documentary had its premiere at the Sundance Film Festival this year and has a 100 per cent approval rating on Rotten Tomatoes.
Cartoonists for free speech: As a part of Deutsche Welle's Freedom of Speech Project, three cartoonists offer their take on the state of free speech in their home countries: Russia, Turkey and Kenya.   
Journalists and others are facing up to 70 years in jail for “participating” (?) in the US inauguration riot: the court case is turning into a test for democracy. 
US Supreme Court unanimously reaffirms: There is no ‘hate speech’ exception to the First Amendment. The ruling resolves a long dispute with the U.S. Patent and Trademark Office over  a provision in federal law that prohibits trademark's that “disparage” or “bring … into contempt or disrepute” any “persons, living or dead” and thereby gives the country some necessary guidance on free speech
Reuters Photo of American Flag and Twitter Bird
The Communications Over Various Feeds Electronically for Engagement (COVFEFE) Act: Rep. Mike Quigley (D-Ill.) introduced legislation to classify presidential social media posts — including President Trump's much-discussed tweets — as presidential records. 
#JournosagainstShutdown Campaign
10 videos from activists from around Asia showing how internet shutdowns harm journalists in Pakistan, Maldives, Nepal, Afganistan, and elsewhere.

Egypt has banned least 62 websites since it began a crackdown on online media more than two weeks ago.
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Electronic Freedom Foundation: Qatar's Crisis is About Freedom of Expression
As some analysts have pointed out, the singling out of Qatar has as much to do with the country’s alleged support of terrorism as it does with neighboring countries’ desire to shutter Al Jazeera, Qatar’s flagship media organization.
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