Centre for Law and Democracy

20 October 2021.

Today, the specialised mandates tasked with promoting and protecting freedom of expression at the UN, OAS, OSCE and African Commission launched their annual statement, the Joint Declaration on Politicians and Public Officials and Freedom of Expression. The Joint Declaration, which was drafted with the assistance of the Centre for Law and Democracy (CLD), sets out standards which States and a range of non-State actors should respect regarding communications by politicians and senior public officials.

“The 2021 Joint Declaration breaks important new ground in several respects”, said Toby Mendel, Executive Director of CLD. “It includes a significant focus on the need for different actors – including States, politicians, social media companies and the media – to take steps to address political speech which promotes intolerance or hatred, or which constitutes disinformation, such as calling on political parties to adopt codes of conduct for officials and candidates and for the media to implement policies on how they report on such statements when they are disseminated by politicians.”

Some of the many specific standards in the Joint Declaration include the following:

• • States should never try to influence the views of the public for party political purposes.
  • Elected officials, candidates for elected office and senior public officials should be required to make transparent asset declarations.
  • Politicians and public officials should treat participants at press conferences equitably and with respect.
  • Social media companies should allow users to opt out of having their personal data used for purposes of targeted political advertising.
  • The media should disclose any conflicts of interest which may affect the way they report on an issue.

The 2021 Joint Declaration is available in the following languages:

Arabic
English
French
Spanish
Portuguese

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
+1 902 431-3688
www.law-democracy.org
twitter: @law_democracy

28 September 2021, International Right to Know Day, is a day when people around the world celebrate the right to access information held by public authorities, or the right to information. UNESCO recognised the day as the International Day for Universal Access to Information (IDUAI) in 2016 and it was recognised as a general UN day in October 2019.

“The right to information has become more and more recognised both formally and in terms of attention and focus on it each year that passes,” said Toby Mendel, Executive Director, CLD. “Today, it is recognised as a human right internationally, it is a formal UN day, it is reflected in the Sustainable Development Goals (SDGs) and 135 countries globally have adopted RTI laws; CLD is proud to be celebrating this important human right with friends and colleagues around the world.”

The Centre for Law and Democracy (CLD) is undertaking or participating in four main activities on this day. First, we are hosting a panel on Reform of the Federal Access to Information Act: Perspectives on the Procedure and Substance at Right To Know Week 2021, a Canadian event celebrating the right to information (RTI). CLD’s panel will take place from noon to 12:50pm EST on 1 Oct 2021; a link to the event schedule is available here, and registration is available here. 

Second, CLD’s Executive Director, Toby Mendel, is collaborating in a number of UNESCO events, including as a speaker on two of their main celebratory panels, namely Panel 1, Access to Information Laws during the Decade of Action: Trends and Challenges, and Panel 6, Access to information – regional perspectives and UNESCO Policy Guide. Many of the other UNESCO panels also cover fascinating topics, so please take a look at the full agenda. Toby Mendel is also participating in-person at UNESCO’s Jordan event, hosting jointly with the Judicial Institute of Jordan, in an event on The role of judicial operators in the protection and promotion of the right to freedom of expression and access to information. This will be followed up by providing a four-day training programme on freedom of expression for judges in Jordan.

Third, CLD is releasing a report about RTI implementation in Canada during the COVID-19 pandemic. Based on a series of test requests, the report looks at how well Canadian institutions discharged their RTI obligations during the pandemic. This report is available here.

Fourth, CLD is updating the RTI Rating page in two key ways. First, as we have been doing for the last few years, we are updating the Rating with new countries which adopted laws recently. We are also adding a new feature: the Ratings of sub-national entities such as Puerto Rico or the Kurdistan region of Iraq can now be found alongside our Ratings for international institutions. Many more subnational Ratings will be uploaded to this page in the coming months.  

For further information, please contact:

J.Y. Hoh
Legal Officer
Centre for Law and Democracy
Email: jyhoh@law-democracy.org
+1 416 833 2918
www.law-democracy.org
twitter: @law_democracy

 27 September 2021. The Centre for Law and Democracy (CLD) is today releasing a Submission to the official consultation on the Government of Canada’s proposals to address harmful content online. The proposals would impose several obligations on online platforms, including to monitor content proactively, report harmful content to law enforcement bodies and create procedures for users to flag content for review. The proposals would also create several new independent regulatory bodies tasked with enforcement of the abovementioned obligations and hearing appeals about content moderation.

“The Canadian proposals to address harmful content online are a mixed bag in terms of compliance with international human rights,” said Toby Mendel, CLD’s Executive Director. “The creation of independent oversight bodies is positive, but requiring platforms to monitor content is very problematical while other features need additional human rights safeguards.”

CLD’s Submission welcomes the positive aspects of the proposals, including the decoupling of online platforms’ content moderation decisions from liability, increased reporting obligations for platforms that would increase transparency, including on how harmful content is monetised, and the independence of the new regulatory bodies.

However, several aspects of the proposals are problematic from a human rights standpoint and should either be removed or adjusted, including:

• • Lack of clarity as to scope, which appears to cover some private communications.
  • A 24-hour deadline for companies to take measures against harmful content, which we recommend generally be extended to 72 hours.
  • An ill-defined obligation for companies to monitor and takedown harmful content proactively.
  • An obligation for companies to report content proactively to law enforcement bodies, which requires them to decide whether content is criminal.
  • A vague definition of “terrorist content” which we recommend be limited to “content that incites terrorist activities” and linked to clear Criminal Code definitions.
  • Failure to put in place sufficient safeguards for website blocking, an extreme practice, so as to ensure that blocking is proportionate and that innocent content is not blocked, and to include publicity requirements regarding blocked sites.

The Submission can be found here.

For further information, please contact:

J.Y. Hoh
Legal Officer
Centre for Law and Democracy
Email: jyhoh@law-democracy.org
+1 416 833 2918
www.law-democracy.org
twitter: @law_democracy

15 September 2021.

Today UNESCO Almaty, in partnership with the Centre for Law and Democracy (CLD), hosted a virtual Workshop on Creating a Media Lawyers’ Network in Kazakhstan to bring legal professionals together to deepen their understanding of and to advocate for media freedom and freedom of expression.

Supported by the Global Media Defence Fund and the Eurasian Digital Foundation, the Workshop discussed the importance and benefits of forming national networks of lawyers dedicated to media defence work and promoting freedom of expression. It provided a general introduction to the concept of a media lawyers’ network and the steps needed to establish one, along with a specific discussion about possible next steps in Kazakhstan. Over 30 participants from Kazakhstan attended the discussion representing media, media lawyers, civil activists, academia and international organizations.

Referring to UNESCO’s work to overview international and regional legal frameworks underpinning the right to freedom of expression, access to information and safety of journalists, Krista Pikkat, UNESCO Representative in Kazakhstan, Kyrgyzstan and Tajikistan, Director of the UNESCO Almaty Cluster Office, noted that “creating a network of media lawyers will help enhance co-operation with judicial, law enforcement and academic law institutions in overcoming knowledge or justice deficiencies in the creation, interpretation, application and enforcement of laws related to freedom of expression, press freedom and the safety of journalists.”

Such networks bring together legal professionals who seek to protect media freedom and freedom of expression. They can serve as forums for professional collaboration, knowledge sharing, advocacy and capacity building.

Speaking at the webinar, Toby Mendel, Executive Director, Centre for Law and Democracy noted: “Media lawyers’ networks can be crucial forums for engaging lawyers in advocating for media law freedom, building media law as a specialisation, exchanging knowledge and supporting strategic litigation.”

CLD is running the project, Promoting the Establishment of Networks of Media Lawyers Globally. The goal is to help lawyers working on freedom of expression and media law issues to create formal professional media lawyers’ networks at the national level. Networks of that sort can be invaluable in bolstering legal protection for media freedom, building members’ expertise and collaborating to provide legal defence to journalists and media.

For a Russian version of this press release, click here. 

6 August 2021. The Centre for Law and Democracy (CLD) is today releasing open letters sent last week to the leaders of the three main Nova Scotian political parties, the Liberal Party, Progressive Conservative Association and New Democratic Party, along with the responses of each party (Liberal/PC/NDP). Sent in the middle of an election campaign, the open letters request party leaders to make election promises to conduct a comprehensive review of the local right to information (RTI) act, the Freedom of Information and Protection of Privacy Act (FOIPOP) and to make three more specific commitments. All three parties responded in a timely manner to our letters, but all failed to make the promises we asked for, instead repeating vague promises to improve the act that have proven ineffective in the past.

“It is regrettable that while all of the party leaders have made statements about the importance of transparency and accountability, none are prepared to make strong and specific commitments to reform the woefully out-of-date Nova Scotian RTI law,” said Toby Mendel, CLD’s Executive Director. “We got the same general commitments two elections ago, when we conducted a similar exercise, and have yet to see any concrete reform of the act; Nova Scotians deserve more.”

Although Nova Scotia was the first jurisdiction in Canada to adopt an RTI law, in 1977, the act has not been significantly reformed since then. According to the RTI Rating, CLD’s internationally recognised methodology for assessing the strength of RTI Laws, the Nova Scotian law scores 85 out of 150 possible points, placing it in 65^th place out of the 129 countries currently on the RTI Rating, far behind leaders such as Mexico, Sri Lanka and Slovenia. In 2013, CLD published an Analysis of the FOIPOP Act that includes a comprehensive list of 18 recommendations for reform. Of those 18 recommendations, the open letter calls on leaders to make specific commitments to three, chosen by CLD for their overriding importance to transparency and accountability, as follows:

• • Grant the Information and Privacy Commissioner of Nova Scotia binding order-making power.
  • Ensure that all exceptions are subject to a robust and comprehensive public interest override which requires public bodies to release information whenever the overall public interest is served by this, notwithstanding the exceptions.
  • Ensure that exceptions which protect public interests are subject to a sunset clause of 20 years or less, after which they no longer apply.

CLD is disappointed by the weak responses from party leaders and calls on them now to make more specific and genuine commitments to reform the legislation so as to prove that their statements in favour of accountability are genuine.

For further information, please contact:

J.Y. Hoh
Legal Officer
Centre for Law and Democracy
Email: jyhoh@law-democracy.org
+1 416 833 2918
www.law-democracy.org
twitter: @law_democracy

30 July 2021.

The Centre for Law and Democracy (CLD), with the support of the Global Media Defence Fund run by UNESCO, is running a project designed to support the formation and development of national networks of lawyers dedicated to media defence work and promoting freedom of expression.

“Media lawyers’ networks can be crucial forums for building media law as a specialisation, bolstering legal protection for media freedom, exchanging knowledge and supporting strategic litigation,” said Toby Mendel, Executive Director, CLD. “Despite the obvious advantages, such networks exist in relatively few countries. This project aims to change that by raising awareness about their benefits and how to go about creating one.”

CLD will host an open webinar outlining the benefits and activities of media lawyers’ networks, sharing some key resources we have developed to support this work and discussing the steps which need to be taken to establish such a network.  The webinar will be held at:

• • Name: Introduction to Creating a Media Lawyers’ Network: Open Webinar
  • Date: 10 August 2021
  • Time: 13:00 UTC
  • RSVP: Email laura@law-democracy.org to obtain the link for the webinar

A link to the agenda for the workshop is available here.

CLD has developed a number of resources to assist lawyers who are interested in forming a Network. These include a brochure explaining the project, a Background Note on Media Lawyers’ Networks and a Model Constitution to serve as a guiding template for those interested in drafting a constitution for a new network. These resources are available in different languages at: https://www.law-democracy.org/live/projects/media-lawyers-networks/.

If you are unable to join the webinar but are interested in this idea, please contact us by email and we will be in touch about possible follow-up opportunities.

For further information, please contact:

Laura Notess
Legal Officer
Centre for Law and Democracy
Email: laura@law-democracy.org
+1 782 234 4471
www.law-democracy.org
twitter: @law_democracy

15 June 2021. Today, Toby Mendel, Executive Director of the Centre for Law and Democracy (CLD), is appearing as an expert witness and presenting a written Statement before the Inter-American Court of Human Rights in the case of Palacio Urrutia and Others v. Ecuador. The case challenges the conviction of journalist Urrutia and fellow defendants for defamation for a newspaper article in 2011 about then-Ecuadorian President Rafael Correa. The conviction resulted in sentences of three years’ imprisonment and a civil damages award of USD 30,000,000, as well as an additional damages award of USD 10,000,000 against the defendant newspaper, El Universo.

“It is an honour for me to have been asked by the Inter-American Commission on Human Rights to be its expert on freedom of expression in this case,” said Toby Mendel. “This case gives the Inter-American Court of Human Rights a chance to further its jurisprudence in a number of important freedom of expression issues regarding both civil and criminal defamation law.”

Some of the key points Mendel made in his written Statement and will stress orally before the Court today are:

• • The key statements in the article were opinions on matters of public interest which are protected speech and should not attract any sanction in defamation law.
  • Criminal defamation is, per se, a breach of the right to freedom of expression; reputations should be protected through the civil law.
  • As an alternative to the above, imprisonment is never appropriate as a sanction for defamation.
  • The civil damages award in this case was wildly excessive; non-material damages for protection of reputation, as such, should be modest and punitive damages should be applied only in highly exceptional circumstances and, in any case, not extend to the level of damages in this case.

Mendel’s Statement is available in English original and Spanish translation. The session is available on the Inter-American Court of Human Rights’ Facebook page here and its YouTube channel here.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
+1 902 431 3688
www.law-democracy.org
twitter: @law_democracy

“the Inter-American Court of Human Rights — in Session” by enaduris is licensed under CC BY-NC-SA 2.0

12 May 2021. The Centre for Law and Democracy (CLD) is releasing two documents analysing, respectively, Mauritius’ Information and Communication Technologies Act 2001 (ICT Act) and recently proposed amendments to that Act. The first is a Note highlighting current human rights problems with the ICT Act, including the lack of independence of media regulators and overbroad content restrictions. The second was submitted in response to the Consultation Paper on Proposed Amendments to the ICT Act for Regulating the Use and Addressing the Abuse and Misuse of Social Media in Mauritius (Consultation Paper), issued by the Mauritian Information and Communication Technologies Authority (ICTA) on 14 April 2021.

“The ICT Act already imposes undue restrictions on the rights to freedom of expression and privacy but the new proposals, if implemented, would represent a flagrant violation of these rights for every Mauritian who uses social media,” said Toby Mendel, CLD’s Executive Director. “Mauritian authorities should abandon these drastic proposals and instead address the underlying human rights problems with the ICT Act.”

The 14 April 2021 proposals would require all social media traffic to and from Mauritius to be routed through a proxy server run by the ICTA, and establish systems to break any encryption provided by social media platforms and conduct official surveillance of all of this traffic. The goal is to enforce existing (very problematical) content restrictions in the ICT Act and to add new responsive measures, including widespread powers to block offending social media pages and content. Implementation would be done by a technical enforcement agency operating under the ICTA, which is not independent of government, and a new content-adjudication agency, which is also unlikely to be independent.

CLD’s submission debunks the misleading justifications provided by the ICTA for these drastic proposals and makes several key recommendations, including to:

• • Abandon these extreme proposals and, instead, focus on working more closely with social media platforms, and building the capacity of the people and institutions of Mauritius to address problems flowing from social media.
  • Ensure that any regulatory bodies which have the power to regulate freedom of expression, whether new or existing, benefit from both formal and structural protections against political and commercial interference.

CLD’s key recommendations for improving the current ICT Act include:

• • Enhance the independence and diversity of the four regulatory and advisory bodies it creates.
  • Amend the licensing scheme which regulates too many services, has vague criteria for the issuance and removal of licences, and authorises intrusive search powers.
  • Remove or substantially amend the numerous vague and overbroad content and other offences which criminalise everyday speech and behaviour, and can result in fines of up to USD25,000 and ten years’ imprisonment.

The submission on the 14 April 2021 Consultation Paper is available here.

The Note that assesses the existing ICT Act can be found here.

For further information, please contact:

J.Y. Hoh
Legal Officer
Centre for Law and Democracy
Email: jyhoh@law-democracy.org
+1 416 833 2918
www.law-democracy.org
twitter: @law_democracy

10 May 2021.

Myanmar’s military took control of the country in a coup on 1 February 2021. Just two weeks later, on 14 February, they introduced important changes to the Penal Code and the Criminal Procedure Code which have become the primary legal provisions being used to charge journalists, student leaders, civil servants and others who are opposing the military regime. Today, the Centre for Law and Democracy (CLD) is releasing Analysis: Amendments to the Penal Code by the State Administration Council, which provides a comprehensive assessment of the amendments as against international human rights standards. It is accompanied by a shorter document which is designed to provide a quick overview of the scope and impact of the amendments.

“Detention, criminal charges, harassment and violence against peaceful protesters, journalists and activists has become the new normal in Myanmar,” said Toby Mendel, Executive Director, CLD. “The changes to the Penal Code are an attempt to give legal cover to these actions, but they do not even begin to pass the test of legitimacy from an international human rights standpoint.”

New section 505A prohibits causing fear, spreading false news and agitating crimes against a government employee, all punishable by up to three years’ imprisonment. The military is now using section 505A essentially as its default for bringing criminal charges against a wide range of persons deemed to pose a challenge to their authority. Other problematical amendments include:

• • Expansions of the scope of high treason and sedition, which make it easier to convict individuals simply for criticising the military (sections 121 and 124A).
  • New sections 124C and 124D which make it a crime to hindering the work of the military or government employees.
  • A new section 505(a), not to be confused with 505A, which makes it a crime to make a statement undermining the morale of military or government employees.
  • Martial law, imposed in some locations since March, allows cases involving these offences to be heard by military tribunals and increases the maximum sentence to death or life imprisonment with hard labour.

The full Analysis is available in English and Burmese.
The summary document is also available in English and Burmese.

For further information, please contact:

Laura Notess
Legal Officer
Centre for Law and Democracy
Email: laura@law-democracy.org
+1 782 234 4471
www.law-democracy.org
twitter: @law_democracy

7 May 2021. The Centre for Law and Democracy (CLD) is pleased to join more than 100 other organisations and individuals in endorsing a letter in solidarity with Ivan Pavlov, a Russian human rights activist and lawyer who has been criminally charged with disclosing data of a preliminary investigation which has been declared secret. The likely reason for these charges is Pavlov’s role, along with other members of Team 29, which he heads, in defending opposition leader Alexey Navalny’s Anti-Corruption Foundation (FBK) and campaign offices against criminal accusations of advocating extremism.

“These charges against Ivan, who is a lion of the human rights and right to information struggle in Russia, are clearly politically motivated,” said Toby Mendel, CLD’s Executive Director. “They also represent a new development in Russia where, until now, lawyers have largely been able to defend their clients despite crackdowns on the opposition.”

Pavlov was detained on Friday, 30 April, and, although he was later ordered to be released by a judge, this was on condition that he not use a telephone or the Internet. Pavlov has been a tireless campaigner against government secrecy and in support of human rights. Just the day before he was charged with making information public, he had accused Russian authorities of abusing secrecy rules in the Navalny case and lodged another legal case to have those materials declared open to the public.

The various measures against Pavlov, including the charges and communications ban, are a manifest breach of his rights to freedom of expression and criminal due process. They represent a broader attack on the rule of law, including respect for the independence of lawyers. CLD calls on democratic States and intergovernmental human rights bodies to take action to defend the rights of Pavlov and all Russians.

The letter with the full list of signatories is available in English original, as well as in Arabic, French, Russian and Spanish translation. 

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
+1 902 431 3688
www.law-democracy.org
twitter: @law_democracy

(Image credit: TaisiaSuvorova, CC BY-SA 4.0 <https://creativecommons.org/licenses/by-sa/4.0>, via Wikimedia Commons)

30 April 2021.

Today, as Namibia hosts the World Press Freedom Day Global Conference 2021, the Centre for Law and Democracy (CLD) released an Analysis of Namibia’s Access to Information Bill. This Bill, which was tabled in parliament in 2021, would give individuals a right to access information held by government. Overall, the Analysis shows that the Bill is largely in line with international standards but could still be further improved. A quick assessment of the Bill based on CLD’s RTI Rating (www.RTI-Rating.org), which is a methodology for assessing the strength of legal frameworks for the right to information globally, shows that it earns a score of 114 out of a total 150 points. This would place it in 20^th position from among the 128 laws currently assessed on the Rating. A few tweaks to the Bill could increase Namibia’s score, placing it among the top ten countries globally, alongside Liberia, the only African country currently in that group.

“Adopting a right to information law has been a matter of debate for a long time in Namibia, so adopting one is long overdue,” said Toby Mendel, Executive Director, CLD. “While the Bill is a good start, parliament should introduce a few improvements so that the final law offers rigorous protection for the right to information.”

The Bill has a number of strengths, such as an independent Information Commissioner with extensive powers, broad scope of coverage and a good set of promotional measures to support effective implementation. The Analysis offers comprehensive recommendations on areas for improvement, but some highlights include:

• • No reasons should be required to be provided when making a request for information and more detailed procedures for making requests should be added.
  • The ATI law should trump secrecy provisions in other laws in case of conflict.
  • The current exclusions of key information related to the cabinet and judiciary should be removed.
  • The public interest override should be amended so that it applies whenever the public interest in accessing information is greater than the harm disclosing it would cause.
  • The criminal sanctions for accessing exempt information should either be removed entirely or be limited in scope to officials.

CLD’s Analysis is available at: Analysis of Namibia’s Access to Information Bill

For further information, please contact:

Laura Notess
Legal Officer
Centre for Law and Democracy
Email: laura@law-democracy.org
+1 782 234 4471
www.law-democracy.org
twitter: @law_democracy

25 April 2021.

The Centre for Law and Democracy (CLD) is today releasing an Analysis of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (referred to informally as the national security law for Hong Kong). The law has become notorious for its broad restrictions on commonplace expressive activity and the extensive control it gives mainland China over criminal prosecutions in Hong Kong, as well as its frequent use, including against leading media and pro-democracy personalities, such as Jimmy Lai. The CLD Analysis, which was produced with support from the International Federation of Journalists (IFJ), outlines the precise legal means used in the law to achieve those repressive aims.

“It is a supreme irony that this law, which was introduced in response to the protests in Hong Kong against threats to introduce legislation to allow criminal suspects to be extradited from Hong Kong to China, not only allows such extraditions but goes so much further,” said Toby Mendel, Executive Director, CLD. “With this legislation China has affirmed, comprehensively, its legal and practical control over freedom of expression in Hong Kong.”

The law creates four new broadly worded offences, namely secession, subversion, terrorist activities and collusion with a foreign country. All four offences are problematical. For example the offence of terrorist activities criminalises the vague notion of “advocating for” terrorism. But collusion with a foreign country is the most flexible, covering broad notions which have no place in the criminal law, such as disrupting the formulation of laws, engaging in hostile activities against Hong Kong or China and provoking hatred against government.

Some of the key other problematical measures in the law include the following:

• • It reverses the normal presumption in favour of bail, which will be granted only if judges have sufficient evidence that the accused will not endanger national security.
  • It provides for cases about national security to be tried by judges who are hand picked on one-year terms by the Chief Executive.
  • It creates a high-level oversight Committee which is “under the supervision of and accountable to the Central People’s Government”.
  • It also creates a Hong Kong office of China’s security services, essentially a Hong Kong outpost for their operations, and grants it extensive powers.
  • It allows for cases to be transferred to mainland China’s justice system, including at the discretion of the office mentioned in the previous point.
  • It grants the police broad powers to order the takedown of content, as well as to intercept and conduct surveillance of communications without the need to obtain any judicial authorisation.

The Analysis is available here.

For further information, please contact:

J.Y. Hoh
Legal Officer
Centre for Law and Democracy
Email: jyhoh@law-democracy.org
+1 416 833-2918
www.law-democracy.org
twitter: @law_democracy

14 April 2021.

The Centre for Law and Democracy has released a summary, in English and Burmese, on the rights of protesters in Myanmar and of the media workers who cover protests. Widespread protests have broken out across Myanmar in response to the 1 February 2021 military coup d’etat, and the military has responded with arrests, detentions, and violence, sometimes lethal. The summary covers the international human rights standards applicable to protests and provides tips for protesters and journalists on the ground.

The summary is available here in English and Burmese.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
+1 902 431 3688
www.law-democracy.org
twitter: @law_democracy

12 April 2021. 

The Centre for Law and Democracy has published a Note that explains the recent legal troubles faced by Hong Kong publisher and democracy activist Jimmy Lai. Lai is facing reprisals from authorities in Hong Kong and mainland China due to the outspoken newspaper he founded, Apple Daily, and his other activities as a leader in Hong Kong’s pro-democracy movement. Several of these charges are under Hong Kong’s colonial-era Public Order Ordinance and the recent mainland China national security law for Hong Kong, both of which have serious failings from an international human rights perspective. 

“CLD is deeply concerned that the Public Order Ordinance and national security law for Hong Kong are being used to target activists such as Jimmy Lai for legitimate expressive activity,” said Toby Mendel, Executive Director at CLD. “Laws should never allow for the criminalisation of peaceful protests and publishing legitimate political speech, especially where, as is the case here, they provide for lengthy jail terms.” 

CLD’s Note on Lai is available at: Note on Jimmy Lai.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
+1 902 431 3688
www.law-democracy.org
twitter: @law_democracy

10 March 2021.

The Centre for Law and Democracy (CLD) has provided a Submission on disinformation to the UN Special Rapporteur on Freedom of Expression. The Submission is in response to a call by the Special Rapporteur for inputs into her June 2021 report to the Human Rights Council, which will focus on disinformation and freedom of expression. CLD’s Submission reviews the main responses by both States and intermediaries to disinformation, analyses them from the perspective of freedom of expression and makes recommendations for future action.

“Disinformation is a growing problem around the world which, even as it represents an exercise of the right to freedom of expression, also seriously undermines that right,” said Toby Mendel, CLD’s Executive Director. “However, all too often responses to disinformation from both governments and intermediaries are broad-brush measures which fail to strike a careful balance between addressing the problem and minimising harm to human rights.”

Government responses to disinformation may consist of adopting broadly worded criminal prohibitions which lack appropriate intent requirements, allocating powers to regulate speech to political (as opposed to independent) actors and placing legal obligations or pressure on intermediaries to restrict content. Governments should focus far more on building trust by taking measures to prevent disinformation by officials, to enhance the flow of reliable information from official sources, to support a diverse, independent media sector and to put in place strong regimes for ensuring that citizens can access official information.

Intermediaries also need to respond in a far more transparent and nuanced way to disinformation. Their definitions of what speech breaches their policies need to be far more precise and be guided by human rights standards. Far greater transparency is needed regarding those definitions, how policies are applied and enforced, and how their automated systems prioritise and feature certain content. Where the approach taken by those automated systems tends to promote disinformation, directly or indirectly, intermediaries need to acknowledge this and address this issue directly, even if it may affect their business interests. Intermediaries also need to engage far more with users in the Global South to ensure that their policies take local conditions appropriately into account.

CLD’s Submission is available  UN Special Rapporteur for Freedom of Expression: Submission on an Annual Thematic Report on Disinformation.

For further information, please contact:

Laura Notess
Legal Officer
Centre for Law and Democracy
Email: laura@law-democracy.org
+1 782 234 4471
www.law-democracy.org
twitter: @law_democracy

1 March 2021.

The Centre for Law and Democracy (CLD) has submitted an amicus curiae (friend of the court) brief to the Constitutional Court of Colombia, setting out international standards to support the claim that a civil defamation provision from a 1944 law is unconstitutional.

The provision, Article 55 of Law 29 of 1944, provides for broad civil indemnification for anyone who has been harmed by content distributed by the media unless the responsible media outlet proves that it acted without “culpability”. The CLD brief argues that this fails to respect international guarantees of freedom of expression, which require sufficient defences to be available for a claim of defamation.

“We welcome the opportunity to support this important challenge to the civil defamation law rules in Colombia,” said Toby Mendel, CLD’s Executive Director. “It is great to see the focus of defamation challenges in Latin America moving on from the earlier focus on criminal defamation to civil defamation, suggesting that cases may also be moving in that direction.”

The latter draws some support from a 9 February annual report by the local press freedom organisation FLIP (Fundación para la Libertad de Prensa or Foundation for Press Freedom). Titled Páginas para la libertad de expresión (Pages for Freedom of Expression), the report notes that there has been an increase in legal cases against the media, with officials preferring this to responding to the substance of media investigations.

CLD’s brief highlights three defences which should be available for any allegation of defamation, namely proof of truth, wide protection for opinions and the defence of reasonable publication, which is made out whenever the person who is responsible for a statement took reasonable care to ensure that it was accurate, even if in fact it contained errors. The brief also argues that third party intermediaries should not normally be responsible for content unless they have been ordered by an independent oversight body, such as a court, to take it down.

CLD’s amicus curiae brief is available here.

El informe de amicus curiae está disponible en español aquí.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
+1 902 431 3688
www.law-democracy.org
twitter: @law_democracy

23 February 2021.

CLD joins with Malaysian and international media organisations and freedom of expression groups to voice concern over the conviction of Malaysian news outlet Malaysiakini on contempt of court charges. This conviction could have serious impacts on the exercise of freedom of expression throughout the country.

The conviction is based on five comments left by third parties in the comments section of a news article on the decision to re-open Malaysia’s courts. It reflects a reliance on an archaic “scandalising the court” approach to contempt of court which does not adequately protect public criticism of the judiciary, as well as an inappropriate imposition of penalties on an intermediary for comments left by Internet users.

As expressed in the Joint Statement: “We call on the Malaysian government to end and refrain from the continued use of intimidating measures to threaten and punish the media and silence opinions.”

CLD joins ARTICLE 19, the Centre for Independent Journalism, Gerakan Media Merdeka, the International Federation of Journalists, the National Union of Journalists Peninsula Malaysia and Reporters without Borders in the statement, which is available in full here.

18 February 2021.

CLD is one of 45 organisations jointly calling on Cambodia to reconsider the Sub-Decree on the Establishment of the National Internet Gateway. We are concerned about the harmful impact of this Sub-Decree on the exercise of human rights in Cambodia, especially the rights to freedom of expression, access to information and privacy.

The full Joint Statement is available at: Joint Statement: Discard the Sub-Decree on the Establishment of the National Internet Gateway, set to detrimentally impact human rights online in Cambodia. 

1 February 2021.

The Centre for Law and Democracy (CLD) has provided a written Submission on Normative Frameworks for the Right to Information to the UN Office of the High Commissioner for Human Rights (OHCHR). The OHCHR is preparing a report on this issue to be presented to the UN Human Rights Council at its forty-seventh session in June 2021. The Council asked the OHCHR to prepare the report in its July 2020 resolution on freedom of expression, the first such resolution it has adopted in more than a decade.

“We very much welcome both the interest of the Council in this issue and the opportunity to contribute to the OHCHR’s report,” said Toby Mendel, CLD’s Executive Director. “We also hope that the Council will follow this up by taking concrete action to encourage States to improve national legal frameworks for this right and to push inter-governmental organisations to put in place strong policy guarantees for it, something they have so far mostly been reluctant to do.”

The CLD Submission relies heavily on the RTI Rating, which provides a good roadmap for a strong normative framework for the right to information, at least insofar as that framework should be reflected in law. The Submission goes further than the RTI Rating in some areas, such as the institutional framework for and a number of policy measures which can strengthen this right.

The Submission starts out by describing the RTI Rating, the standards it promotes and how it can be used to research country legal provisions on different issues. It then goes on to describe better practice normative frameworks in nine areas, namely guarantees for the right, institutional frameworks, proactive disclosure, scope of application of the right, requesting procedures, the regime of exceptions, appeals, sanctions and protections and promotional measures.

CLD’s Submission is available at OHCHR Submission on Normative Frameworks for the Right to Information.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
+1 902 431 3688
www.law-democracy.org
twitter: @law_democracy