Studio Monitori and Others v. Georgia : access to public documents must be ‘instrumental’ for the right to freedom of expression

In the case of Studio Monitori and Others v. Georgia the European Court of Human Rights (ECtHR) in its judgment of 30 January 2020 has confirmed that the right to freedom of expression and information as guaranteed by Article 10 of the European Convention on Human Rights (ECHR) can only be invoked in order to obtain access to public documents when a set of conditions are fulfilled. It is one of the cases following the judgment of the Grand Chamber in Magyar Helsinki Bizottság v. Hungary to test the scope and limits of the right of access to information and the applicability of Article 10 ECHR. The most important consequence of the judgment in Studio Monitori and Others is that NGOs, journalists or other public watchdogs requesting access to public documents have to motivate and clarify in their request that access to the documents they are applying for is instrumental, and even necessary, for their journalistic reporting and that the requested documents contain information of public interest

Refusal to give access to ‘confidential’ information about politicians violated NGO’s Article 10 rights

On 26 March 2020, the European Court of Human Rights unanimously found that a refusal by the Ukrainian authorities to give a non-governmental organisation (NGO) access to information about the education and work history of top politicians as contained in their official CVs, filed as candidates for Parliament, violated the NGO’s right of access to public documents under Article 10 ECHR. The Court in Centre for Democracy and the Rule of Law v. Ukraine, highlighted that it was the first case from Ukraine on access to information since the Grand Chamber’s seminal 2016 Magyar Helsinki Bizottság v. Hungary judgment, and that it raised ‘novel’ issues for Ukraine’s authorities and courts. This judgment, delivered during the Covid-19 pandemic, clearly illustrates how important it is, more than ever, that the Court applies strict scrutiny under Article 10 in cases on access to public documents, recognising the importance of transparency on matters of public interest

Mobile Privacy and Business-to-Platform Dependencies: An Analysis of SEC Disclosures

This Article systematically examines the dependence of mobile apps on mobile platforms for the collection and use of personal information through an analysis of Securities and Exchange Commission (SEC) filings of mobile app companies. The Article uses these disclosures to find systematic evidence of how app business models are shaped by the governance of user data by mobile platforms, in order to reflect on the role of platforms in privacy regulation more generally. The analysis of SEC filings documented in the Article produces new and unique insights into the data practices and data-related aspects of the business models of popular mobile apps and shows the value of SEC filings for privacy law and policy research more generally. The discussion of SEC filings and privacy builds on regulatory developments in SEC disclosures and cybersecurity of the last decade. The Article also connects to recent regulatory developments in the U.S. and Europe, including the General Data Protection Regulation, the proposals for a new ePrivacy Regulation and a Regulation of fairness in business-to-platform relations

Yes, Prime Minister (bis): prosecution for satirical collage criticising Turkish prime minister’s foreign policy violated artist’s freedom of expression

On 2 February 2021, the European Court of Human Rights (ECtHR) unanimously found that the criminal proceedings against an artist’s satirical collage ‘insulting’ the Turkish Prime Minister violated his right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). In an earlier case (Tuşalp v. Turkey) about press articles criticising the then Prime Minister, Mr. Recep Tayyip Erdoğan, the ECtHR also concluded that the Turkish authorities had disproportionately interfered with freedom of political expression, by overprotecting the reputation of the Prime Minister (see our blog entitled ‘Yes Prime Minister!’ here). In its latest judgment in Dickinson v. Turkey the ECtHR confirms that a politician must show a greater tolerance towards criticism, especially when the expression takes the form of satire. Most importantly, the ECtHR found that Article 10 was violated, even where the applicant has ‘only’ been criminally prosecuted, without any sanction being imposed. The ECtHR considers that being prosecuted for insult of a political leader, with a risk of being imprisoned, has a chilling effect on the right to freedom of expression

Regulating Disinformation in Europe: Implications for Speech and Privacy

This Article examines the ongoing dynamics in the regulation of disinformation in Europe, focusing on the intersection between the right to freedom of expression and the right to privacy. Importantly, there has been a recent wave of regulatory measures and other forms of pressure on online platforms to tackle disinformation in Europe. These measures play out in different ways at the intersection of the right to freedom of expression and the right to privacy. Crucially, as governments, journalists, and researchers seek greater transparency and access to information from online platforms to evaluate their impact on the health of their democracies, these measures raise acute issues related to user privacy. Indeed, platforms that once refused to cooperate with governments in identifying users allegedly responsible for disseminating illegal or harmful content are now expanding cooperation. However, while platforms are increasingly facilitating government access to user data, platforms are also invoking data protection law concerns as a shield in response to recent efforts at increased platform transparency. At the same time, data protection law provides for one of the main systemic regulatory safeguards in Europe. It protects user autonomy concerning data-driven campaigns, requiring transparency for internet audiences about targeting and data subject rights in relation to audience platforms, such as social media companies

Freedom of expression, the media and journalists : case-law of the European Court of Human Rights

This e-book (also available in a printed version) offers a structured insight into the European Court of Human Rights’ case-law on freedom of expression and media and journalistic freedoms has been a widely appreciated. It is presented as a vade mecum on Article 10 of the European Convention on Human Rights. The target group includes lawyers, judges, law- and policy-makers, civil society actors, journalists and other media actors, academics, students, and indeed everyone with an interest in its subject matter. This revised edition contains summaries of over 315 judgments or decisions by the Court and provides hyperlinks to the full text of each of the summarised judgments or decisions (via HUDOC, the Court’s online case-law database). It can be read in various ways: for initial orientation in the steadily growing Article 10 case-law; for refreshing one’s knowledge of that case-law; for quick reference and checking, as well as for substantive research. The structure of the e-book is as follows: 1. Table of cases: an overview of all the cases summarised, including bibliographic data, keywords, hyperlinks to the individual summaries and hyperlinks to the full texts of the judgments or decisions. 2. Introduction by Dirk Voorhoof to trends and developments in the European Court of Human Rights’ case-law on Article 10 of the European Convention on Human Rights in the period 1994-2019. 3. Compilation of case-law summaries. 4. Appendices

Case law EU : RT France v. Council: General Court finds ban on Russia Today not a violation of right to freedom of expression

On 27 July 2022, in RT France v. Council, the General Court of the European Union found that the ban on RT France in the EU did not violate the right to freedom of expression and media freedom, under Article 11 of the EU Charter of Fundamental Rights. Notably, the General Court sought to apply principles from case law of the European Court of Human Rights and international human rights law. However, there are serious questions to be raised over the General Court’s reasoning in RT France, and the judgment arguably represents a deeply-problematic application of European and international free expression principles

Regulating Disinformation in Europe: Implications for Speech and Privacy

This Article examines the ongoing dynamics in the regulation of disinformation in Europe, focusing on the intersection between the right to freedom of expression and the right to privacy. Importantly, there has been a recent wave of regulatory measures and other forms of pressure on online platforms to tackle disinformation in Europe. These measures play out in different ways at the intersection of the right to freedom of expression and the right to privacy. Crucially, as governments, journalists, and researchers seek greater transparency and access to information from online platforms to evaluate their impact on the health of their democracies, these measures raise acute issues related to user privacy. Indeed, platforms that once refused to cooperate with governments in identifying users allegedly responsible for disseminating illegal or harmful content are now expanding cooperation. However, while platforms are increasingly facilitating government access to user data, platforms are also invoking data protection law concerns as a shield in response to recent efforts at increased platform transparency. At the same time, data protection law provides for one of the main systemic regulatory safeguards in Europe. It protects user autonomy concerning data-driven campaigns, requiring transparency for internet audiences about targeting and data subject rights in relation to audience platforms, such as social media companies

DIGITAL PLATFORMS AND THE DIGITISATION OF GOVERNMENT SURVEILLANCE

In Europe today, digital platforms, such as Facebook, Twitter and YouTube, provide essential means for millions of people to express themselves, engage in public debate, and organise politically (Poell & van Dijck, 2018). Crucially, governments are leveraging the power of platforms to impose new forms of restrictions on free expression, and engage in surveillance of individuals and online activism. This has profound implications for the rights to freedom of expression, privacy, and data protection. Further, platforms that once refused to cooperate with governments in identifying users responsible for disseminating allegedly illegal or harmful content are now expanding cooperation with authorities, including sharing data about users flagged by law enforcement and other authorities. As civil society organisations warn, this trend is contributing to ‘invasive and unlawful digital surveillance’ (Amnesty International, 2019, p. 24). This paper examines how European governments are leveraging the power of digital platforms to engage in government surveillance online, and assesses the compatibility of these measures with European human rights law. The paper applies a unique interdisciplinary perspective, bringing together law, political communication and surveillance studies. First, the paper examines how platforms’ algorithmic systems shape (and limit) information dissemination. The paper then critically analyses government-platform initiatives that exist to surveil citizens and gather information, including new measures under the EU’s proposed Digital Services Act. Third, it assesses how these measures comply with freedom of expression and the right to privacy, and concludes with recommendations on remedying problematic elements of the role platforms play in digitisation of government surveillance

Using Terms and Conditions to apply Fundamental Rights to Content Moderation

Large online platforms provide an unprecedented means for exercising freedom of expression online and wield enormous power over public participation in the online democratic space. However, it is increasingly clear that their systems, where (automated) content moderation decisions are taken based on a platform's terms and conditions (T&Cs), are fundamentally broken. Content moderation systems have been said to undermine freedom of expression, especially where important public interest speech ends up suppressed, such as speech by minority and marginalized groups. Indeed, these content moderation systems have been criticized for their overly vague rules of operation, inconsistent enforcement, and an overdependence on automation. Therefore, in order to better protect freedom of expression online, international human rights bodies and civil society organizations have argued that platforms “should incorporate directly” principles of fundamental rights law into their T&Cs. Under EU law, and apart from a rule in the Terrorist Content Regulation, platforms had until recently no explicit obligation to incorporate fundamental rights into their T&Cs. However, an important provision in the Digital Services Act (DSA) will change this. Crucially, Article 14 DSA lays down new rules on how platforms can enforce their T&Cs, including that platforms must have “due regard” to the “fundamental rights” of users under the EU Charter of Fundamental Rights. In this article, we critically examine the topic of enforceability of fundamental rights via T&Cs through the prism of Article 14 DSA. We ask whether this provision requires platforms to apply EU fundamental rights law and to what extent this may curb the power of Big Tech over online speech. We conclude that Article 14 will make it possible, in principle, to establish the indirect horizontal effect of fundamental rights in the relationship between online platforms and their users. But in order for the application and enforcement of T&Cs to take due regard of fundamental rights, Article 14 must be operationalized within the framework of the international and European fundamental rights standards, and therefore allowing Article 14 to fulfil its revolutionary potential