Freedom of Expression

Guatemala and Covid-19: Justice Postponed

/ Lauren McIntosh / Leave a comment
Photo courtesy of Alexey Hulsov

This blog piece was co-authored by Jaime Chávez Alor, Latin America Policy Manager at the Cyrus R. Vance Center for International Justice of the New York City Bar, and was originally posted on the website of the International Legal Assistance Consortium (ILAC).

Guatemala is just one of the slew of countries like Brazil, Nicaragua and Hungary that was already experiencing rule of law backsliding long before Covid-19. However, as highlighted in ILAC’s most recent rule of law assessment report, there was a window of opportunity to return to combating corruption and strengthening the rule of law in Guatemala with the ushering in of a new executive in January 2020. Guatemala’s new president, Alejandro Giammattei, even took early steps to show he was serious about fighting corruption by signing an inter-institutional cooperation agreement and establishing a presidential commission against corruption. Even though there were initial signs of hope, there are already unfortunately several reasons to fear that the rule of law will continue to backslide and that the chance for justice will be postponed during the pandemic.

Further rule of law backsliding during Covid-19 is already happening

We have already seen Guatemala’s Congress use a Covid-19 discussion to pass a bill that amends the NGO law. The amendment restricts development NGOs and has been heavily criticized since it was first introduced in March 2017 as being inconsistent with the right of association and freedom of expression. Yet, on February 11, it was “surreptitiously approved after being introduced by three congressmen during a discussion of emergency measures to confront the coronavirus, thus deceiving all transparency and debate in the parliamentary process”.[1] Guatemala’s Constitutional Court provisionally suspended enactment of the law, but its final ruling is on hold as the Court is not in session due to Covid-19.

Added challenges to judicial nominations

More than six months have passed since Congress should have elected judges to Guatemala’s highest benches, including the Supreme Court and Court of Appeals. What was already a nominations process plagued by technical failures and corruption scandals has been further delayed and is likely to become even less transparent due to the pandemic. In the midst of the national quarantine, Guatemala’s Congress met on March 17, and elected judges to the Supreme Electoral Tribunal. The Congressional session to elect the judges was closed to the media as a measure to apparently prevent spreading of the virus. In response, many sectors within Guatemala expressed concern over the lack of transparency in the election process. Despite these concerns, the nine newly elected judges took the bench on March 27. 

Almost as worrying is the fact that the first order issued by the new judges suspended the annulment of six different political parties, economic sanctions against former political candidates, advertising companies and political organisations, several of whom had allegedly illicitly financed past elections. The judges justified their order by stating that the affected parties were unable to appear in their defense due to the public health crisis. This begs the question of whether the judges used Covid-19 as a pretext to justify their ruling after being influenced to suspend the annulments and sanctions. If the answer is yes, this is not a good start for the legitimacy of the newly formed Tribunal which is meant to administer justice and root out corruption in electoral matters.

Covid-19 as a pretext for limiting civil liberties

Not only was the media excluded from the Congressional session to elect new judges to the Supreme Electoral Tribunal, but the government has placed further restrictions on journalists seeking to access and cover other Congressional sessions. On April 4, in response to the limitations, the Human Rights Ombudsman filed an amparo[2] with the Constitutional Court claiming that the restrictions violated Guatemala’s constitution. Similarly, about a week later, more than a hundred journalists, columnists, activists and civil society organizations demanded that President Giammattei and his government stop threatening their freedom of expression and independent journalism. The demand arises from the fact that the government has attempted to silence media outlets critical of the government’s response to the pandemic by using intimidation tactics and excluding journalists from official WhatsApp groups where the government disseminates Covid-19 information.

Can the Constitutional Court continue to resist?

The Constitutional Court has remained a pocket of resistance throughout the attacks on the justice sector and the rule of law in Guatemala, and hopefully this will remain true in spite of the pandemic. In addition to the amparos pending before the Constitutional Court regarding the NGO law and the restrictions placed on journalists, the Court continues to receive amparos during the pandemic. This includes amparos filed by the Human Rights Ombudsman to decentralise Covid-19 testing and for President Giammattei’s failure to appoint a head of the Presidential Secretariat for Women which works to protect the rights of women and children, an amparo requiring President Giammattei to guarantee water and electricity services throughout the health emergency and an amparo to guarantee that the conditions of employees are not modified during the pandemic. It is unclear how these pressing constitutional questions will be resolved while the Court is not in session and how much of a backlog the institution can manage once it is up and running again. How long can justice be postponed during a public health crisis?

Sources

[1] WOLA, “Guatemala: National and International Organizations Condemn Approval of NGO Law,” https://www.wola.org/2020/02/organizations-condemn-approval-of-ngo-law/ (18 Feb. 2020).

[2] An amparo is a remedy to protect constitutional rights and is common to many legal systems in Latin America.

Why COVID-19 is a Crisis for Digital Rights

/ Nani Jansen Reventlow / Leave a comment
Adam Nieścioruk on Unsplash: Street art — graffiti with facial mask on the wall during the current Coronavirus (COVID-19) pandemic in Warsaw, Poland

The COVID-19 pandemic has triggered an equally urgent digital rights crisis.

New measures being hurried in to curb the spread of the virus, from “biosurveillance” and online tracking to censorship, are potentially as world-changing as the disease itself. These changes aren’t necessarily temporary, either: once in place, many of them can’t be undone.

That’s why activists, civil society and the courts must carefully scrutinise questionable new measures, and make sure that – even amid a global panic – states are complying with international human rights law.

Human rights watchdog Amnesty International recently commented that human rights restrictions are spreading almost as quickly as coronavirus itself. Indeed, the fast-paced nature of the pandemic response has empowered governments to rush through new policies with little to no legal  oversight.

There has already been a widespread absence of transparency and regulation when it comes to the rollout of these emergency measures, with many falling far short of international human rights standards.

Tensions between protecting public health and upholding people’s basic rights and liberties are rising. While it is of course necessary to put in place safeguards to slow the spread of the virus, it’s absolutely vital that these measures are balanced and proportionate.

Unfortunately, this isn’t always proving to be the case.

The Rise of Biosurveillance

A panopticon world on a scale never seen before is quickly materialising.

“Biosurveillance” – which involves the tracking of people’s movements, communications and health data – has already become a buzzword, used to describe certain worrying measures being deployed to contain the virus.

A panopticon world on a scale never seen before is quickly materialising

The means by which states, often aided by private companies, are monitoring their citizens are increasingly extensive: phone data, CCTV footage, temperature checkpoints, airline and railway bookings, credit card information, online shopping records, social media data, facial recognition, and sometimes even drones.

Private companies are exploiting the situation and offering rights-abusing products to states, purportedly to help them manage the impact of the pandemic. One Israeli spyware firm has developed a product it claims can track the spread of coronavirus by analysing two weeks’ worth of data from people’s personal phones, and subsequently matching it up with data about citizens’ movements obtained from national phone companies.

In some instances, citizens can also track each other’s movements – leading to not only vertical, but also horizontal sharing of sensitive medical data.

Not only are many of these measures unnecessary and disproportionately intrusive, they also give rise to secondary questions, such as: how secure is our data? How long will it be kept for? Is there transparency around how it is obtained and processed? Is it being shared or repurposed, and if so, with who?

Censorship and Misinformation

Censorship is becoming rife, with many arguing that a “censorship pandemic” is surging in step with COVID-19.

Oppressive regimes are rapidly adopting “fake news” laws. This is ostensibly to curb the spread of misinformation about the virus, but in practice, this legislation is often used to crack down on dissenting voices or otherwise suppress free speech. In Cambodia, for example, there have already been at least 17 arrests of people for sharing information about coronavirus.

Oppressive regimes are rapidly adopting “fake news” laws

At the same time, many states have themselves been accused of fuelling disinformation to their citizens to create confusion, or are arresting those who express criticism of the government’s response.

As well as this, some states have restricted free access to information on the virus, either by blocking access to health apps, or cutting off access to the internet altogether.

An all-seeing, prisonlike panopticon
I, Friman, Wikipedia: Inside one of the prison buildings at Presidio Modelo, Isla de la Juventud, Cuba

AI, Inequality and Control

The deployment of AI can have consequences for human rights at the best of times, but now, it’s regularly being adopted with minimal oversight and regulation.

AI and other automated learning technology are the foundation for many surveillance and social control tools. Because of the pandemic, it is being increasingly relied upon to fight misinformation online and process the huge increase in applications for emergency social protection which are, naturally, more urgent than ever.

Prior to the COVID-19 outbreak, the digital rights field had consistently warned about the human rights implications of these inscrutable “black boxes”, including their biased and discriminatory effects. The adoption of such technologies without proper oversight or consultation should be resisted and challenged through the courts, not least because of their potential to exacerbate the inequalities already experienced by those hardest hit by the pandemic.

Eroding Human Rights

Many of the human rights-violating measures that have been adopted to date are taken outside the framework of proper derogations from applicable human rights instruments, which would ensure that emergency measures are temporary, limited and supervised.

Legislation is being adopted by decree, without clear time limitations

Legislation is being adopted by decree, without clear time limitations, and technology is being deployed in a context where clear rules and regulations are absent.

This is of great concern for two main reasons.

First, this type of “legislating through the back door” of measures that are not necessarily temporary avoids going through a proper democratic process of oversight and checks and balances, resulting in de facto authoritarian rule.

Second, if left unchecked and unchallenged, this could set a highly dangerous precedent for the future. This is the first pandemic we are experiencing at this scale – we are currently writing the playbook for global crises to come.

If it becomes clear that governments can use a global health emergency to instate human rights infringing measures without being challenged or without having to reverse these measures, making them permanent instead of temporary, we will essentially be handing over a blank cheque to authoritarian regimes to wait until the next pandemic to impose whatever measures they want.

We are currently writing the playbook for global crises to come

Therefore, any and all measures that are not strictly necessary, sufficiently narrow in scope, and of a clearly defined temporary nature, need to be challenged as a matter of urgency. If they are not, we will not be able to push back on a certain path towards a dystopian surveillance state.

Litigation: New Ways to Engage

In tandem with advocacy and policy efforts, we will need strategic litigation to challenge the most egregious measures through the court system. Going through the legislature alone will be too slow and, with public gatherings banned, public demonstrations will not be possible at scale.

The courts will need to adapt to the current situation – and are in the process of doing so – by offering new ways for litigants to engage. Courts are still hearing urgent matters and questions concerning fundamental rights and our democratic system will fall within that remit. This has already been demonstrated by the first cases requesting oversight to government surveillance in response to the pandemic.

These issues have never been more pressing, and it’s abundantly clear that action must be taken. The courts can be an important ally in safeguarding our digital rights, also in the current crisis, but we must give them the opportunity to play that role.

This blog has been cross-posted from the Digital Freedom Fund blog.

ECOWAS Court clarifies its human rights jurisdiction: no time limit barring human rights complaints and continuing violations are recognised

/ Nani Jansen Reventlow / Leave a comment

ECOWASToday, the ECOWAS Community Court of Justice clarified a long-outstanding point of contention: there is no time limit for filing complaints concerning human rights violations. This was held in the case of FAJ and Others v. The Gambia. The Court also clarified that it accepted the doctrine of continuing human rights violations. Judgment was read in court, with the full written judgment expected to be published next week.

Whether or not the ECOWAS Court had a time limit that could bar its jurisdiction over human rights claims brought before it had been unclear for some time. In the case of Femi Falana & Anor. v. The Republic of Benin & 2 Ors. the Court looked at Article 9 of the Court’s Supplementary Protocol to determine whether an application filed in October 2007 regarding an alleged human rights violation that had taken place in April 2004 was admissible. Article 9 sets out the Court’s jurisdiction, specifying in 9(1) and (2) its jurisdiction regarding the interpretation and application of the Community Treaty, directives, and regulations, and acts or omissions by its officials. This is followed by Article 9(3), which read as follows:

“3. Any action by or against a Community Institution or any Member of the Community shall be statute barred after three (3) years from the date when the right of action arose.”

This is then followed by Article 9(4), which sets out the Court’s jurisdiction in human rights matters:

“4. The Court has jurisdiction to determine case of violation of human rights that occur in any Member State.”

No specific indication regarding the time limit in human rights matters – as is present regarding actions brought against the Community or its members – is included in the Protocol. In the Femi Falana case, however, the Court interpreted the time limitation in Article 9(3) as applying to human rights claims as well. As freedom of movement did not constitute a “gross violation of human rights”, in which case no statute of limitation could have applied in accordance with UN GA Resolution 60/147.

The Court clarified today that, for interpretation purposes, the French version of the Supplementary Protocol is the preferred version. It reads as follows:

“L’action en responsabilite contre la Communauté ou celle de la Communauté contre des tiers ou ses agents se prescrivent par trois (3) ans à compter de la réalisation des dommages.”

Accordingly, the Court said, claims for the enforcement of human rights against Member States cannot be barred by the limitation period stated in the Supplementary Protocol. The Court explicitly stated that any previous decisions stating the contrary had hereby  been overruled.

The Court also took the opportunity to address the issue of continuing violations, which so far had never been clarified explicitly by the Court. While in the case of Alade v. Federal Republic of Nigeria the Court considered on the merits a case filed in 2011 by a Nigerian citizen who had been imprisoned since 2003, the issue of continuing violations was not expressly considered in the judgment.  A similar approach was taken in the case of Hydara v. The Gambia.

The Court cleared up any doubts today, when it stated that it recognised the concept of a “continuing harm” in relation to the applicants who had brought a claim concerning their existence in exile from The Gambia – the Court relied on the case of Randolph v. Togo, decided by the UN Human Rights Committee, to reach the conclusion that forced exile was a human rights violation of a continuing nature.

With this decision, the ECOWAS Court establishes itself as currently the most progressive human rights court in Africa when it comes to temporal jurisdiction. Within the region, the East African Court of Justice – which does not have explicit human rights jurisdiction, but can consider complaints about a violation of the East African Community Treaty and also concern human rights – is the most strict. The Court maintains a time limit of 2 months after the violation occurred for filing a claim before it (Article 32 of the Treaty Establishing the East African Community) and in the case of Emmanuel Mwakisha Mjawasi and Others v. The Attorney General of Kenya explicitly rejected the concept of continuing human rights violations. The African Court on Human and Peoples Rights’ rules do not impose an explicit time bar to human rights claims, but do state that applications should be filed “within a reasonable time from the date local remedies were exhausted” (Rule 40 of the Court’s Rules of Procedure). In Mtikila v. Tanzania, the African Court confirmed its recognition of the doctrine of continuing violations.

Looking further afield, the Inter-American Commission of Human Rights, which can refer cases on to the Inter-American Court maintains a time limit of 6 months (Article 32 of the Rules of Procedure). The European Court of Human Rights’ time limit to receive applications is 6 months upon exhaustion of (effective) domestic remedies (Article 35(2) of the European Convention), which will be shortened to 4 months when Protocol No. 15 to the European Convention enters into force.

The ECOWAS Court’s judgment helps in furthering its firm establishment as a human rights court. The Court reportedly ruled on around 249 cases since it commenced its activities in 2001. While statistics on the exact number of human rights applications and rulings are not available, the Court’s human rights mandate has, in the Court’s own words “become the centerpiece of its judicial activities.”

Nani Jansen Reventlow is the former Legal Director of the Media Legal Defence Initiative, one of the parties representing the applicants in this case, and was involved in litigating the case until her departure from MLDI in June 2016.

Online harassment of women journalists and international law: not “just” a gender issue, but a threat to democracy

/ Nani Jansen Reventlow / Leave a comment

Democracy

Image by ydant (CC BY-NC-ND 2.0)

Online harassment of women journalists hinders the free press from operating as it should, which negatively affects the democratic process. Silencing journalists stifles the free flow of information and our ability to exercise our democratic rights; a pluralistic media landscape needs to include women’s voices. Silencing women journalists therefore constitutes an attack on democracy itself. States should address the issue with the gravity it deserves and live up to their international obligations to put in place domestic legal systems capable of responding adequately to these attacks.

 

The problem

When a 14-year-old girl was raped in Finland, journalist Linda Pelkonen covered the case on the news website Uusi Suomi. In her report, she mentioned that, contrary to regular practice, the police had referred to the suspect’s ethnicity: allegedly a Finnish citizen of immigrant background had been involved. A post smearing Pelkonen appeared on the anti-immigrant MV Lehti website, after which she received a host of rape and death threats. After a reader published Pelkonen’s personal phone number in the website’s comment section, encouraging others to inform the journalist of their discontent, she received threatening text messages from 18 different phone numbers, and a phone call telling her she would be raped. Pelkonen reported the threats to the police, informing them that she was scared. Declining to investigate, the regional prosecutor argued that journalists, due to the public nature of their work, needed “to be able to endure more criticism than others.”

UK think tank Demos estimates that women journalists receive three times as many abusive comments on Twitter as their male counterparts

Sadly, Pelkonen’s case is hardly an exception. No comprehensive study on the pervasiveness of online harassment of women journalists has been conducted yet, but the data available paint a gloomy picture. UK think tank Demos estimates that women journalists receive three times as many abusive comments on Twitter as their male counterparts. A survey conducted by the International Women’s Media Foundation showed that over 25% of “verbal, written and/or physical intimidation including threats, to family or friends” took place online.

This week, the OSCE Representative on Freedom of the Media organised its second workshop this year on the safety of female journalists online. In addition to discussing issues such as digital security and civil society initiatives like HeartMob, the workshop addressed the international legal framework within which the online harassment of women journalists should be placed.

“Online” harassment

What are we talking about when we say “online” harassment of women journalists? It covers a broad range of actions, including threats of (sexual) violence, the spreading of falsehoods about a person asserted as facts, the posting of sensitive information online (home address, personal phone number, social security numbers), technological attacks such as falsely shutting down social media accounts, (sexist, racist) insults, and swatting.

The distinction between the “online” and “offline” world is artificial. That the medium used for the harassment is digital, does not mean that actual fear and anxiety do not follow from it.

The distinction between the “online” and “offline” world is artificial. To the extent that any separation between these dimensions of our lives could still be made today, any “online” harassment will always have a “real world” effect. That the medium used for the harassment is digital, does not mean that actual fear and anxiety do not follow from it.

This is underlined by UN Human Rights Council Resolution L.13  on the promotion, protection and enjoyment of human rights on the Internet, which affirms that “the same rights that people have offline must also be protected online, in particular freedom of expression”. Similarly, the OSCE Representative on Freedom of the Media issued recommendations in 2015, stating that “online abuse must be dealt with in the broader context of gender discrimination and violence against women to ensure that the same rights that people have offline must be protected online.”

International legal standards: at the intersection of freedom of expression and gender

The issue of harassment of women journalists needs to be framed from all relevant perspectives: as a freedom of expression issue and as an issue of gender-based violence against women.

Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which is further elucidated by the UN Human Rights Committee in General Comment 34, makes clear that the right to freedom of expression is a key right that can only be restricted under a limited set of circumstances. It is both an individual right of personal self-fulfilment and a collective right, allowing all members of society to receive information and ideas and inform themselves on matters of public interest. Journalists have a special role to play in this democratic process. As the UN Human Rights Committee, which oversees compliance with the ICCPR, frames it: “A free, uncensored and unhindered press or other media is essential in any society to ensure freedom of opinion and expression … It constitutes one of the cornerstones of a democratic society.”

For the States that are party to the ICCPR (or one of its regional counterparts, the European Convention on Human Rights, American Convention on Human Rights or African Charter on Human and Peoples’ Rights), this also entails an obligation to ensure a diverse media landscape, both online and offline.

Attacks on women journalists are attacks on democracy itself.

The Convention on the Elimination of Discrimination against Women, often referred to as the “international bill of rights for women” defines discrimination against women and sets up an agenda for national action to end it. The CEDAW Committee, which oversees States’ compliance with the Convention, stated in General Recommendation 19, recently updated by General Recommendation 35, that gender-based violence against women constitutes discrimination against women. The Committee defines it as: “violence that is directed against a woman because she is a woman or that affects women disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty.” Online harassment of women journalists falls squarely within this definition, as is explicitly

6 February 1998 - Committee on the Elimination of Discrimination Against Women, United Nations Headquarters, New York addressing journalists at a press briefing

6 February 1998 – Committee on the Elimination of Discrimination Against Women, United Nations Headquarters, New York addressing journalists at a press briefing.

mentioned in the General Recommendation: “Harmful practices and crimes against women human rights defenders, politicians, activists or journalists are also forms of gender-based violence against women.”

The interlinkage between the right to freedom of expression and women’s right to be free from discrimination is also made explicit: “Women’s right to a life free from gender-based violence is indivisible from and interdependent with other human rights, including the right to … freedom of expression.”

This is where the crux lies: the online harassment of women journalists hinders the free press from operating as it should, which negatively affects the democratic process. Council of Europe Recommendation CM/Rec(2016)4 of the Committee of Ministers on the protection of journalism and safety of journalists and other media actors sums this up succinctly: “[acts of online harassment of women journalists] which in practice are committed by both State and non-State actors, have a grave chilling effect on freedom of expression … including on the ability to access information, on the public watchdog role of journalists and other media actors and on open and vigorous public debate, all of which are essential in a democratic society.”

In other words: attacks on women journalists are attacks on democracy itself.

States’ obligations to create conditions for effective investigation, prosecution and protection

When signing on to a human rights treaty, a State takes it upon itself to respect, protect and fulfil its obligations under that treaty. The obligation to respect means that the State must refrain from interfering with or curtailing the enjoyment of the human rights contained in the treaty; the obligation to protect means that the State must protect individuals and groups against human rights abuses; and the obligation to fulfil means that the State must take positive action to facilitate the enjoyment these human rights.

These obligations are applicable to all branches of the State and all public or governmental authorities, at all levels that are in a position to engage the responsibility of the State. They also require the State to ensure that persons are protected from acts by private persons or entities that impair the enjoyment of the relevant human rights.

There is an obligation of the State to put into place a domestic legal system that is capable of responding adequately to threats, ensuring that perpetrators are prosecuted.

Specifically, there is an obligation of the State to put into place a domestic legal system that is capable of responding adequately to threats, ensuring that perpetrators are prosecuted. CEDAW General Recommendation 35 stipulates that “[S]tates parties have to adopt and implement diverse measures to tackle gender-based violence against women committed by non-State actors. They are required to have laws, institutions and a system in place to address such violence.”

Failing to do so constitutes a human rights violation in and of itself: “The failure of a State party to take all appropriate measures to prevent acts of gender-based violence against women when its authorities know or should know of the danger of violence, or a failure to investigate, prosecute and punish, and to provide reparation to victims/survivors of such acts, provides tacit permission or encouragement to acts of gender-based violence against women. These failures or omissions constitute human rights violations.”

National law and online harassment

What recourse can national legal systems offer to those targeted by online harassment? Generally, there are two possible tracks: civil proceedings or the criminal justice system.

Bringing a civil case can be time-consuming, expensive and emotionally draining. It can also have the unwanted effect of drawing additional public attention to the case, which can aggravate the harassment.

Under the civil law system, the target of harassment can initiate legal action against the attacker, suing them for a civil wrong. In some cases, for example if personal photos have been stolen and published, a copyright claim is also an option. The outcome of civil proceedings can be monetary compensation for the claimant and personal vindication for having won (or even pursued) the case. But bringing a civil case can be time-consuming, expensive and emotionally draining. It can also have the unwanted effect of drawing additional public attention to the case, which can aggravate the harassment.

Adequate follow-up by the authorities is not a given. Many legal systems operate with laws that have not been updated to meet the demands of the digital age.

Remedies in the criminal justice system can be a restraining order against the attacker, a criminal penalty, and in some systems also monetary compensation. Pursuing a case within the criminal justice system entails filing a complaint with the authorities, after which prosecution can follow. In most systems, the prosecutor will have discretionary powers to decide whether or not to pursue a case. As illustrated by the case of Pelkonen described above, adequate follow-up by the authorities is not a given. Many legal systems operate with laws that have not been updated to meet the demands of the digital age. Combined with a lack of understanding of modern technology by both law enforcement and judges, this can lead to a frustrating experience for those wanting to file a complaint about harassment. Journalist Amanda Hess described this aptly in her account of trying to file a report on death threats she received, upon which a police officer asked her “What is Twitter?”. In addition, law enforcement can be too under-educated and under-resourced to properly follow up and investigate even if they are willing to register a complaint.

When the regional prosecutor failed to follow up, Pelkonen did not give up. She filed a complaint at the prosecutor’s office together with the Union of Journalists in Finland, arguing that failing to prosecute her case would set a dangerous precedent. Finland’s Prosecutor General then decided to take up the case, which resulted in three men being charged in May 2017. The first hearing in the case is scheduled to take place in early 2018.

A threat to democracy itself

While the prosecution in Pelkonen’s case is a positive (interim) outcome, this by no means is an example of what should happen in these scenarios. The onus should not be on the targeted person to force the justice system into action: justice should be administered as a rule. States can and should do better in this regard.

The onus should not be on the targeted person to force the justice system into action: justice should be administered as a rule.

There is often a tendency to brush gender issues aside as “niche”. Given that women make up about half of the world’s population, this is a questionable argument as such, but it also simply isn’t true.

Silencing journalists stifles the free flow of information and our ability to exercise our democratic rights. There is a clear obligation of States to protect these rights and guarantee a pluralistic media landscape – a media landscape that includes women’s voices. Silencing women journalists is an attack on democracy itself and it should be dealt with, with the gravity it deserves.

This post has been cross-posted on Medium.

Kenyan court knocks down criminal defamation, safeguards freedom of expression

/ Nani Jansen Reventlow / Leave a comment

Efforts to create more space for free expression in Africa have been strengthened by the Kenyan Judiciary. In the case of Jacqueline Okuta & Anor vs. AG & Others, the High Court of Kenya on 6 of February 2017 annulled section 194 of the Penal Code that provides for the offence of criminal defamation. This decision is significant in safeguarding the fundamental rights of Kenyans, particularly in light of the forthcoming general elections. It curtails the misuse of criminal law provisions by political figures to curtail speech they consider unfavorable. Journalists especially have been victims of criminal defamation sanctions for exposing corruption and unlawful activities of public officials.

“The harmful and undesirable consequences of criminalizing defamation, viz. the chilling possibilities of arrest, detention and two years’ imprisonment, are manifestly excessive in their effect and unjustifiable in a modern democratic society”, Judge Mativo of the High Court of Kenya pronounced in his judgment.

The Judge noted that upon promulgation of the Constitution of Kenya in 2010, it was expected that certain provisions in Kenya’s existing laws were to be amended to align them to the letter and spirit of the Constitution. However, seven years later, this expectation had not been met. Relying on regional and international standards on freedom of expression, the Court concluded that criminal defamation is unconstitutional, reasoning that “the chilling effect of criminalizing defamation is exacerbated by the maximum punishment of two years’ imprisonment imposable for any contravention which is clearly excessive and patently disproportionate for the purpose of suppressing objectionable or opprobrious statements. The Court further held that imprisonment as a sanction was not “reasonably justifiable in a democratic society” and that the availability of civil remedies afforded sufficient redress for injury to one’s reputation.

Criminal defamation continues to prominently feature in Penal Codes of African countries especially in East Africa. The High Court of Kenya is the first court in the region to declare that criminal defamation violates the right to freedom of expression.

The case in Kenya arose from the indictment of two petitioners, Jacqueline Okuta and Jackson Njeru, who were each charged with criminal defamation for allegedly publishing defamatory statements on their Facebook account “Buyer beware-Kenya.” The case complaint was based on a post in which the complainants were pictured and named as being wanted for illegal possession and handling of property, and misuse of a telecommunication device. The petitioners then sought to challenge section 194 of the Penal Code before the Constitutional and Human Rights division of the High Court, arguing that the provision was unconstitutional and violated the right to freedom of expression.

A key question is what impact the decision from Kenya’s High Court will have in East Africa, and possibly in the wider African region. The judgment follows and references the landmark decision of the African Court on Human and Peoples’ Rights in the case of Lohé Issa Konaté v. Burkina Faso, but goes further than that Court’s finding that criminal defamation laws should only be used as a last resort when there is a serious threat to the enjoyment of other human rights in exceptional circumstances such as hate speech and incitement. It does so by finding that “any continued enforcement of criminal defamation laws by the government would be a violation of the fundamental and constitutionally guaranteed right to the freedom of expression.”

This corresponds with the minority dissenting opinion in the African Court case, in which 4 of the 10-judge bench found that the “’State’s duty to enforce collective security, morality and common interest’ cannot justify the criminalization of expression of speech by way of criminal defamation laws of any kind, whether punishable by incarceration or not. Access to civil action, civil sanctions together with specifically defined crimes for safeguarding national security, public peace and the common interest should be sufficient.”

The Kenyan case highlights the potential of strategic litigation as an effective tool in bringing about social change where lobbying efforts have failed. It reinforces the efforts of other national courts in Africa like Zimbabwe that have decriminalized defamation twice, once under its previous and once under its current constitution. Other countries in the region, such as Ghana, abolished criminal defamation laws through law reform. This is in line with the continental campaign to decriminalize defamation by the African Union Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. Efforts to do the same in East Africa have so far been without result, especially where countries like Uganda previously upheld the constitutionality of criminal defamation laws on grounds that they are “relevant” in protecting reputation.

cbs-radio-journalist-ronald-ssembuusi-middle-leaving-court-with-hrnj-uganda-lawyer-catherine-anite-left

Journalist Ronald Ssembuusi (middle) leaving court with lawyer Catherine Anite (left). Photo courtesy of HRNJ-Uganda.

A challenge to Uganda’s criminal defamation laws is currently pending before the East African Court of Justice. The case, brought on behalf of the now-deceased Ugandan journalist Ronald Ssembuusi, argues that his conviction to a prison sentence of one year was in violation of Uganda’s obligations under the East African Community Treaty. The matter has garnered much interest from the international community, with not only the African Union and United Nations Special Rapporteurs on freedom of expression having requested to make amicus submissions in the case, but also a coalition of 20 African and international NGOs. It will be interesting to see what impact the Kenyan judgment might have on the case. If the East African Court rules in favor of Ssembuusi, the judgment will positively impact all East African Community countries, which include Kenya, Tanzania, Uganda, Rwanda Burundi and South Sudan.

This post was co-authored by Catherine Anite, a human rights lawyer from Uganda and part of the legal team litigating the Ssembuusi case. Nani Jansen Reventlow was lead counsel on the Konaté case. This post has been cross-posted from Harvard’s Cyberlaw Clinic blog.

‘Fake news’ highlights much bigger problems at play

/ Nani Jansen Reventlow / 3 Comments

Hardly a day goes by without another story on fake news. With the excessive coverage dedicated to it globally, you would think it is something new. But ‘fake news’ is not new and the ways we try to combat it only highlight our inadequacies in dealing with much bigger problems.

As the US Presidential Election progressed, public fixation on the term grew and so did ambitions to try and combat. In Germany, one suggested approach has been to legislate against it, forcing social media companies to delete fake news posts or face 500,000 EUR fines. Sweden also threatened to initiate legal action against Facebook unless it started cracking down on fake news.

That might sound appealing to some. By simply outlawing fake content, we could have a news ecosystem where the information published is guaranteed to be true. As it turns out, legislating against fake news is a really bad idea. Several countries tried it back when it was called ‘false news’, a label which has served for years as a handy means of pretext for many a despot seeking to silence the opposition.

The main problem with legislating against fake news is that definitions of what constitutes fake (or false) news will generally be overly broad, leaving them open to interpretation and abuse by authorities. This puts at risk the challenging of viewpoints, which lies at the heart of a democratic society. They know that in Zambia, where a national court declared its false news law unconstitutional in 2014. And they know it in Canada, Uganda, Zimbabwe, and the United States, where supreme courts have all held that false news provisions are incompatible with the right to freedom of expression.

A softer approach to combatting fake news was announced by Facebook in December last year. It makes use of third-party fact checking organizations, which will look into user-submitted reports of fake news. This is part of a package of other projects including tackling news illiteracy and improving the skills of journalists. Whether it will be successful is hard to say, but Facebook’s initiatives certainly represent a more constructive approach than simply banning fake news. Unfortunately, they are still merely a band-aid on a much bigger ailment: people’s lack of trust. As it turns out, labeling fake news stories as fake is unlikely to stop people from believing they are true. Why? Because people do not trust the ‘experts’ who make this call for them.

And why should they? In January, the European Union task force East StratCom, warned that Russia is seeking to influence the outcome of several key elections in Europe this year with ‘enormous, far-reaching (…) disinformation campaigns.’ Amongst 2,500 fake news stories uncovered by the task force are conspiracy theories over who shot down Flight MH17 over Ukraine to claims that Sweden had banned Christmas lights for religious reasons and that the EU was planning to ban snowmen as “racist”. By spreading vast amounts of conflicting messages, these disinformatzya campaigns seek to persuade audiences that there are so many versions of events that it is impossible to find the truth, impossible to find information one can really trust. The point is to pollute the news ecosystem to make readers question everything and to undermine the very notion of truth itself.

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In the digital age, we communicate on platforms that resemble medieval marketplaces: everyone is shouting and no one seems able to find common ground with those across the aisle. Photo: Francis McKee, CC BY 2.0

People’s difficulties with trusting information is a much bigger problem than fake news. It is also a central premise of the digital age as the “Gutenberg Parenthesis” theory highlights, arguing that the digital age partly represents a return to medieval ways of communicating, before Gutenberg’s movable type facilitated easy printing and revolutionised the world. The new printed word had a different authority that oral communication did not possess. But then the internet happened and we are now communicating through platforms that resemble marketplaces where everyone is shouting, and where those who want to undermine their opponents can simply hire an army of trolls to do the work for them.

Labelling content as fake news may help some to navigate the ecosystem of news, but it represents a shallow response to much larger underlying problems. Legislating against fake news may make its controversy disappear for a moment, but has a potentially chilling effect on freedom of expression. Neither approach will help people figure out whom or what to trust. There are no easy or quick fixes, but if the ambition is to address fake news in all its forms, there is a need to focus on the underlying issues rather prescribing symptomatic treatment. It will require us to go beyond scratching the surface of the deeper problems of our own bias and inability to reach across the aisle and find common ground with the people we disagree with.

This post was co-authored by Andreas Reventlow, Programme Development and Digital Freedom Advisor at International Media Support who works with journalists and human rights defenders to promote standards of professional journalism, digital security and internet freedom. It has been cross-posted from the Berkman Klein Center collection on Medium.

Reinterpreting Human Rights through Global Media: A Case Study of Al Jazeera English

/ Cecilia Marcela Bailliet / 1 Comment

The Canadian Journal of Human Rights has just published an article I wrote examining Al Jazeera English. One of the characteristics of globalization is the migration of people and the emergence of “virtual states” uniting people in different geographic territoritories via the internet and global media. In response to the transnational identities of diaspora and cosmopolitan audiences, the global media increasingly illuminates human rights issues. Human rights are described as providing an emancipatative vocabulary in order to facilitate the creation of spaces for agency or autonomy of individuals and groups in relation to the state. Ideally, the media promotes “dialogue, debate, and democratic pluralism”, thus, its purpose has an intrinsic tie to human rights. The article explores the way in which Al Jazeera English utilizes human rights as a frame. I analyze Al Jazeera English reports on the right to food, freedom of expression, and women’s rights, demonstrating how the reports reveal multiple causes of hunger, censorship, and gender discrimination and violence. It also invites consideration of possible solutions involving legal or judicial reform and disseminates the output of international and regional human rights institutions. It may well be considered as promoting peace journalism, as it seeks to provide voice to marginalized groups and achieve conflict resolution. It legitimizes universal human rights discourses by presenting their audience with an alternative voice. There is a need for further research as to impact of the media on our understaning of the enjoyment of human rights in the world. The link to the article is available here.