Greater clarity on intermediary liability may not be a win for free expression online

The Delfi v. Estonia decision, issued in June of 2015 by the European Court of Human Rights, marked a low point in that court’s caselaw regarding freedom of expression on the Internet. This week, a new European Court ruling slightly qualifies and narrows the scope of Delfi. The outcome of the new decision is not as detrimental as one could have anticipated; however, it looks to be another step toward requiring European Internet intermediaries to monitor user-generated content on their sites.

Background: The Delfi decision of 2015

In Delfi, the Grand Chamber ruled that holding an online news portal liable as the publisher of unlawful comments posted by its users was consistent with the right to freedom of expression enshrined in Article 10 of the European Convention on Human Rights. It distinguished a similar ruling by the First Section of the Court, which upheld the imposition of liability for comments that were deemed defamatory. For the Grand Chamber, the comments rose to the level of hate speech and incitement to violence, which were clearly unlawful and particularly harmful forms of speech.

The Grand Chamber declined to inform its Delfi analysis with caselaw interpreting the EU E-Commerce Directive and other relevant international instruments on the right to freedom of expression. According to these materials, a broad range of intermediaries should be shielded from liability for content that they transmit or host. The E-Commerce Directive and other materials indicate that intermediaries should not have a duty to monitor user-generated content on their sites, and decisions regarding liability should examine whether the intermediary had actual knowledge of unlawful material.

Although the European Court’s jurisdiction is limited to interpreting the European Convention and its protocols, I have argued in a forthcoming piece that the Delfi decision undermines legal certainty regarding intermediary liability in Europe and is problematic for the right to freedom of expression (see similar views here, here and here). The Court specified that its reasoning in Delfi only applied to “a large professionally managed Internet news portal run on a commercial basis which published news articles of its own and invited its readers to comment on them,” excluding most social networking services. Nevertheless, it is increasingly difficult to distinguish intermediaries on the basis of whether they provide or “edit” content.

The Court’s latest decision on the liability of an online intermediary

In Magyar Tartalomszolgaltatok Egyesulete and Index.hu Zrt v. Hungary (MTE), the Fourth Section of the European Court qualified Delfi and explained that Internet content providers will be held to the highest standards of conduct when hate speech or incitement to violence is posted on their sites. Because the comments in question in this case were merely defamatory, Hungary’s decision to hold the applicants – a self-regulatory body of Internet content providers and a major Internet news portal – strictly liable constituted a violation of Article 10 of the European Convention (a welcome contrast to the First Section’s holding in the 2013 Delfi decision).

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Write On! Canadian International Lawyer Call for Papers (deadline March 15)

The journal Canadian International Lawyer is soliciting papers for its Volume 11(2). CIL welcomes submissions of original articles, case commentaries, practice notes, treaties, and legal developments on significant current issues of international law in French or English. Occasionally, CIL publishes a section entitled “From a Legal Point of View?” addressing inconclusive and pressing legal issues worthy of informing the current political debate in Canada.

Among all other submissions, CIL encourages articles dealing with the following topics:

• The Trans-Pacific Partnership (TPP)

• The recently concluded Paris Agreement on climate change

• Legal aspects of the UN’s Sustainable Development Goals (SDGs)

Submissions are subject to an editorial review process. Feature articles and case comments are double blind peer reviewed by selected scholars and practitioners before acceptance for publication. Submissions are accepted only electronically, and should be emailed to Noemi Gal-Or at ngalor [at] ngal-or.com and Andrew Lanouette at alanouette [at] cassidylevy.com. The deadline for submissions is March 15, 2016.

For more information, visit http://www.cba.org/Publications-Resources/CBA-Journals/Canadian-International-Lawyer.

Go On! Geneva Academy new Master of Advanced Studies on Transitional Justice, Human Rights and the Rule of Law (deadline 29 Feb.)

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The Geneva Academy of International Humanitarian Law and Human Rights has launched a new Master of Advanced Studies on Transitional Justice, Human Rights and the Rule of Law (September 2016–August 2017). Based in Geneva, this one-year program combines in-depth theoretical knowledge with ‘real world’ perspectives. The Faculty comprises leading scholars and practitioners working in the area of transitional justice, human rights and the rule of law – including Professor William Schabas, Dr. Rama Mani and Professor Christof Heyns, UN Special Rapporteur extrajudicial, summary or arbitrary executions. The deadline to apply is 29 February (with scholarship request) or 31 March (without).

One of the special features of the program is a concern to link academic teaching and research with practical work and professionalizing activities. The program offers students access to work experience in leading international agencies dedicated to transitional justice, human rights and rule of law concerns. Throughout the year, a transitional justice clinic will be held to serve as a platform for students to share their practical experiences and to facilitate dialogue and critical reflection on specific cases and situations.

The program adopts a highly personalized approach to teaching and academic life by providing individualized guidance and one-to-one counseling for students, namely via personalized academic mentoring, career coaching and the coordination of internships. For more information, visit http://www.master-transitionaljustice.ch.

Confirmation of charges hearing in Dominic Ongwen case: hopeful signs for gender justice?

From 21 to 27 January 2016, the confirmation of charges hearing in the Dominic Ongwen case was held at the International Criminal Court (ICC). It is an important case for many reasons, one of which is this post’s subject: the case includes a high number of sexual and gender-based violence (SGBV) charges, which, if confirmed, would be the broadest range of such crimes ever to come to trial at the ICC. It would certainly illustrate that the positive trend in this respect that started with the Ntaganda case continues, and would consolidate important case law on these crimes.

Dominic Ongwen, an alleged senior commander in the Lord’s Resistance Army (LRA), is charged with responsibility for 70 counts of war crimes and crimes against humanity committed by the LRA in various locations in Northern Uganda from at least 1 July 2002 to 31 December 2005. Importantly, the charges include eight counts of SGBV: rape, torture, and sexual slavery as both war crimes and crimes against humanity, and forced marriage and enslavement as crimes against humanity. This makes it an important case for gender justice at the ICC. The case has the highest number of SGBV charges to date.

However, if the Court’s track-record for sexual violence charges is something to go by, we are in for a rainy day. With Ngudjolo’s acquittal in 2012, and Katanga’s partial conviction in 2014 excluding sexual violence crimes, there have thus far been no successful convictions for SGBV crimes at the ICC. This is a disappointing record for a Court that was heralded as a “model for gender justice” when its Statute entered into force.

With the Office of the Prosecutor’s (OTP) stated commitment to strengthen its investigation and prosecution of SGBV, however, there is hope that this case will be different. It follows in the footsteps of the Ntaganda case – the first case to reach the confirmation stage since Fatou Bensouda took office as Prosecutor; this was the first case in which all SGBV charges sought by the Prosecution at confirmation were confirmed. Further, in the Ntaganda case, the OTP is pushing the understandings of IHL protections around (sexual violence) crimes committed against one’s own troops. If successful, this would develop international law’s gendered understandings of child recruitment.

The Ongwen case may shed light on yet another relatively under-developed area of gender justice in international criminal law jurisprudence. It would be one of the few cases in international criminal justice to address the crime of forced marriage. While not included in the Rome Statute as a separate offence, the Prosecution has charged forced marriage as an inhumane act of similar character under Article 7(1)(k). The Prosecution alleges that the LRA pursued a policy of abducting women and young girls with the express aim of forcing them to act as wives of LRA commanders and fighters. While the OTP alleges that exclusive sexual services were an inherent part of being a forced wife, importantly, they argued that it also encompasses other, non-sexual, tasks such as household chores, cooking, and child rearing, i.e. raising new LRA fighters.  Continue reading

Introducing Dieneke de Vos

Dieneke-3It’s our great pleasure today to introduce Dieneke de Vos as an IntLawGrrls contributor. Dieneke is a women’s human rights advocate and academic with a background in international relations and international law. She is currently a PhD Candidate at the European University Institute, in Florence, Italy. Her general research interests include women’s rights and gender in international law, transitional justice, and the domestic implementation of international criminal law. Her PhD thesis examines interactions between the International Criminal Court and national accountability processes for sexual violence crimes in Colombia and the Democratic Republic of the Congo.

Having worked for civil society, the International Criminal Court, and in academia, she has experience monitoring and evaluating legal, practical, and institutional obstacles to the effective investigation and prosecution of sexual and gender-based crimes from various perspectives at both the international and national level. Dieneke holds an LLM in Comparative European and International Law from the EUI, an LLM in Human Rights Law from the London School of Economics and Political Science, and a BA in Social Sciences from University College Utrecht.

Her first post will discuss the ICC Ongwen confirmation hearing and forced marriage. Heartfelt welcome!

First national trial for sexual slavery as an international crime opens Feb.1 in Guatemala

On February 1, in a courtroom in Guatemala City, an historic trial will begin. Presiding Judge Yassmin Barrios – the same judge who presided over the Rios Montt genocide trial in 2013 – and her two colleagues will hear evidence against two former military officials for sexual violence, sexual slavery and domestic slavery as crimes against humanity. According to the Prosecutor, for up to six years Qek’chi Mayan women of rural communities were forced to take turns every two or three days washing, providing tortillas, cooking, cleaning and being raped at the military outpost of the community of Sepur Zarco, located on the border between the townships of Panzós and El Estor.  Fifteen of the survivors, backed by a coalition of women’s groups, brought a complaint in 2011 against the commander of the base, retired colonel Esteelmer Reyes Girón, and Heriberto Valdéz Asij, the former military commissioner (the Army’s local representative in rural areas) in the region. In addition to the crimes against humanity charges, Reyes is charged with murdering Dominga Coc and her two young daughters on the base. Valdez will face additional charges of forced disappearance.

 

The crimes were committed during the early 1980s, the height of the counter-insurgency war, although the women were forced to provide food for the soldiers until 1988 when the outpost closed. They originated, as many things do in Guatemala, with a struggle over land. The women’s husbands, worried that their lands had no formal title, began to push for security of tenure. The area near Panzós has long been a site of land struggles, including a 1978 massacre that many historians consider the beginning of the campaigns against the rural Mayan population. The response of local landowners was to call in the army, which killed or disappeared the men. Several months later, the army attacked their widows, burning down the houses, destroying their belongings, raping them, and forcing them to move right outside the military base. At that point, the “turns” in the military base began. A few of the women chose to flee, and lived for years in the mountains, suffering hunger and losing some or all of their children.

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Day of child-justice reform, at Court and White House, leaves much yet to be done

barsMonday was quite a day for child rights in the United States.

It began in the morning, when the Supreme Court made clear in Montgomery v. Louisiana that its 2012 ruling in Miller v. Alabama, which had outlawed sentences of life without parole for persons who were under eighteen when they committed the crime of conviction, applied retroactively.

Writing for the 6-member majority in Montgomery, Justice Anthony M. Kennedy  stated that the 2012 decision in Miller

did more than require a sentencer to con­sider a juvenile offender’s youth before imposing life with­ out parole; it established that the penological justifications for life without parole collapse in light of ‘the distinctive attributes of youth.’ (p. 16)

As a result, he wrote, it established a “substantive rule of constitutional law,” the kind of rule that must apply even to persons whose cases otherwise would have been deemed final before the issuance of the 2012 decision.

according to Wall Street Journal reporter Jess Bravin, the decision granted “the possibility of freedom to as many as 2,500 inmates who otherwise would die in prison.”

Then, just 4 hours from midnight, the Washington Post published an op-ed in which President Barack Obama announced he had accepted recommendations in a new Department of Justice report; thus, inter alia, “banning solitary confinement for juveniles” in the federal prison system. The op-ed concluded on notes of promise:

In America, we believe in redemption. We believe, in the words of Pope Francis, that ‘every human person is endowed with an inalienable dignity, and society can only benefit from the rehabilitation of those convicted of crimes.’

In that last sentence, notably, Obama quoted the September 2015 address to Congress in which Pope Francis called for abolition of the death penalty. The President’s op-ed continued:

We believe that when people make mistakes, they deserve the opportunity to remake their lives. And if we can give them the hope of a better future, and a way to get back on their feet, then we will leave our children with a country that is safer, stronger and worthy of our highest ideals.

A children’s day indeed.

Still, it must be noted that the solitary confinement ban applies only to the U.S. Bureau of Prisons. The DOJ report wrote at page 66:

The Department of Justice prosecutes very few juveniles, and so the Bureau is only responsible for the custody of a very small number of juveniles. As of December 5, 2015, the Bureau was responsible for 71 juvenile inmates, of which 45 were serving a term of incarceration, and 26 were under the supervision of the U.S. Probation Office.

Many thousands are in state correctional systems, and thus not affected by Obama’s decision.

And there is much yet to be done of a preventive nature, to help children from entering the juvenile justice system at all.

(Cross-posted from Diane Marie Amann)

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