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The single most important of the conditions for the availability of the exception is that the quotation be ‘compatible with fair practice’. As noted in Chapter 2, it was the introduction of the concept of fair practice that enabled the parties to agree on a quotation exception. Previous attempts to reach an international consensus, which had sought to limit quotation by reference to type of work, extent of taking or purpose had failed to provide a sufficiently flexible criterion. The concept of ‘fair practice’ (or ‘bons usages’) proved the magic solution.
This chapter addresses whether and when content generated by an algorithm should be considered “expression” deserving of legal protection. Free expression has been described as “the matrix, the indispensable condition, of nearly every other form of freedom.”1 It receives extensive protection in many countries through legislation, constitutional rights, and the common law.2 Despite its deep roots, however, freedom of expression has unsettled boundaries. At their cutting edge lies the problem of “speech” produced by algorithms, a phenomenon that challenges traditional accounts of freedom of expression and impacts the balance of power between producers and consumers of algorithmically generated content.3
High-profile controversies have created an impression that expressive freedom is imperilled on university campuses in North America. Analyses of this alleged campus crisis typically focus either on the negative psychosocial characteristics of those who oppose potentially harmful expression or on the cynical ways that expressive freedom can be invoked to normalize harmful expression. Conversely, I argue that theories of harm are key to understanding the contemporary discourse and politics of expressive freedom on campus. To shift the frame of analysis, I critically analyze three interrelated theoretical concepts that feature elastic conceptualizations of harm and are consequential for expressive limits in an academic environment: epistemic injustice, argumentational injustice and epistemic exploitation. I argue that all three concepts require a distinction between testimony and argumentation in order to better balance protection from harm, on the one hand, and expressive freedom and open inquiry, on the other.
In the past several years, transparency has emerged as one of the leading accountability mechanisms through which platform companies have attempted to regain the trust of the public, politicians, and regulatory authorities. The goal of this chapter is to contextualize the recent examples of transparency as implemented by platform companies with an overview of the relevant literature on transparency in both theory and practice, consider the potential positive governance impacts of transparency as a form of accountability in the current political moment, and reflect on the shortfalls of transparency that should be considered by legislators, academics, and funders weighing the relative benefits of policy or research dealing with transparency in this area.
In its General Comment No. 34 dealing with freedom of expression, the United Nations Human Rights Committee (UNHRC) rejected the idea that a blasphemy law could ever be human-rights compliant, unless its function was to prevent incitement to religious or racial hatred. This is a widely shared view that is consistently endorsed when any international blasphemy controversy (such as that involving the Danish Cartoons in 2005) arises. This article assesses the legitimacy of this view. The International Covenant on Civil and Political Rights (ICCPR) permits freedom of expression to be limited inter alia in the name of public morality, provided that the law in question is also necessary to achieve this end. This article argues that because a blasphemy law can be a response to a public moral vision; therefore a blasphemy law can serve a legitimate purpose insofar as human rights law is concerned. It is further submitted that whereas some blasphemy laws are unacceptably draconian, it is not inherently impossible for such a law to represent a proportionate response to a public morals concern. Thus, the conclusion from the UNHRC is not warranted by the text of the ICCPR. Moreover, there is a risk that, in reaching this conclusion the committee is evincing an exclusively secularist worldview in its interpretation of the ICCPR that undermines its claim to universality.
According to the influential “expressive” argument for hate speech laws, legal restrictions on hate speech are justified, in significant part, because they powerfully express opposition to hate speech. Yet the expressive argument faces a challenge: why couldn't we communicate opposition to hate speech via counterspeech, rather than bans? I argue that the expressive argument cannot address this challenge satisfactorily. Specifically, I examine three considerations that purport to explain bans’ expressive distinctiveness: considerations of strength; considerations of directness; and considerations of complicity. These considerations either fail to establish that bans are expressively superior to counterspeech, or presuppose that bans successfully deter hate speech. This result severely undercuts the expressive argument's appeal. First, contrary to what its proponents suggest, this argument fails to circumvent the protracted empirical controversies surrounding bans’ effectiveness as deterrents. Second, the expressive argument appears redundant, because bans are expressively distinctive only insofar as hate speech is already suppressed.
Chapter 4, Shaping ‘Legal’ Space, examines the spatial politics of the Constitutional Court of South Africa. The Court’s architecture and art collection are intended to symbolise the values of the Constitution. I explore five themes critical to justice which are dominant in the discourse of the Court – both in how people speak about the Court and in how the Court portrays itself. Four of these themes refer to values rooted in and fostered by the Constitution (accessibility, equality, dignity, and freedom of expression) while the fifth theme (justice under a tree) relates to a process of South African constitutionalism embedded in regional vernacular and post-apartheid identity formation. I analyse each theme by examining how its material manifestation – specific artworks and architectural features – intervene in the appearance and performance of the Court, shaping how the Constitution is understood in different ways. I argue that these material interventions and the space they create are key to the provision of justice at the Court.
The construction of historical memory is closely linked to the guarantees provided by the right to freedom of expression. This right ensures that victims and society in general are able to speak about the past, narrate their own stories, and call for and influence social discussion and institutional reform. Mechanisms such as access to State archives, participation in the media, journalistic coverage of armed conflicts and the free flow of stories, artistic endeavours, criticisms and condemnations empower victims and the rest of society in the construction of alternative narratives and independent memories. This article examines case law of the Inter-American System of Human Rights that elaborates on freedom of expression, and considers its importance for the construction of historical memory. It also touches upon some decisions taken by the Colombian high courts, relevant to a context in which mechanisms of transitional justice have recently been implemented.
Information is essential for the functioning of modern societies. Access to information denotes the right of citizens to obtain information regarding how they are governed. In 2011, Nigeria enacted the Freedom of Information Act, to ensure openness and transparency in public governance. This article evaluates the extent to which the legislation has strengthened the right of access to information in Nigeria. Through analysis of the provisions of the act and some decided cases, the article argues that challenges, both in the act's provisions and in its enforcement by the courts, have resulted in a “blunted” law that lacks the capacity to satisfy the people's expectations on the right of access to public information. Drawing on the experience of other jurisdictions where similar laws are operative (notably South Africa and India), the article suggests ways through which the implementation of the act could be made more effective.
So far, we have heard a lot about how private actors are trying to regulate the internet. Governments across the world have also been very active in trying to get internet companies to regulate what information their citizens can access and share online. The decentralized, resilient design of the internet makes government censorship much more difficult than in the mass media era, where it was much simpler to embed controls within the operations of a small number of major newspaper publishers and television and radio networks. Governments are adapting, though, and quickly becoming much more sophisticated in how they monitor and control the flow of information online.
In August 2017, several hundred white nationalists marched on the small university town of Charlottesville, Virginia. The rally turned tragic when one of the protesters rammed his car into a crowd of counterprotesters, killing 32-year-old Heather Heyer. The Washington Post characterized the protesters as “a meticulously organized, well-coordinated and heavily armed company of white nationalists.”1
This article argues that the public figure doctrine is doctrinally problematic and conceptually and normatively flawed. Doctrinal uncertainty surrounds who is affected and how rights are affected. Conceptually it raises challenges for universality, the non-hierarchical relationship between Articles 8 and 10 ECHR, the process of resolving rights conflicts, and the relationship between domestic law and the Convention. All of which necessitate a strong normative justification for the distinction. Yet there is no compelling rationale. The values underpinning the right to privacy of public figures are no different from those of other persons and there are other better mechanisms of accounting for freedom of expression. We should therefore reject the idea that public figures have fewer or weaker privacy rights or that the process of dealing with their rights is different and instead focus squarely upon the relative importance of the rights, and the degree of intrusion into those rights.
The Russian Federation joins a list of countries where violence and terrorism often have a religious and an ethnic basis, and where the authorities seek ways to deal with the issue of online hate speech. In this context, in May 2014 the Russian Parliament enacted Federal Law No 97-FZ (the Bloggers’ Law). This legislation required the compulsory registration of all popular bloggers with the country's internet regulatory agency, Roskomnadzor, thereby forcing the disclosure of their real identities. The Bloggers’ Law has been widely criticised, however, and although the internet community is still engaged in a heated discussion over whether there exists a legal right to online anonymity, the law made anonymous blogging in Russia a daunting undertaking. The Bloggers’ Law was repealed in the second half of 2017, and updating of the ‘Bloggers’ Register’ ceased. This article attempts to (i) analyse the context and the reasoning behind the introduction of the Bloggers’ Register; (ii) disentangle the relevant legal provisions; and (iii) assess its effectiveness, drawing conclusions based on events in the Russian blogosphere during the period 2014–17.
In its landmark November 24, 2017 judgment in Ingabire Victoire Umuhoza v. The Republic of Rwanda, the African Court on Human and Peoples’ Rights (ACtHPR) or Court) held that certain aspects of the right to a fair trial (presumption of innocence and illegal searches) and the right to freedom of expression under the African Charter on Human and Peoples’ Rights (Banjul Charter) and the International Covenant on Civil and Political Rights (ICCPR) had been violated by the Republic of Rwanda (Respondent State). In its final orders, however, the Court rejected the applicant's prayer for immediate release and deferred its decision on other forms of reparation. The judgment has broad implications on how African states protect and respect the rights to a fair trial and freedom of expression. The case also offers some vital lessons on state backlash towards human rights litigation and African states’ compliance with decisions of international courts (ICs).
The business and human rights debate has essentially bypassed the media industry. This article addresses that gap in the debate by applying the Guiding Principles on Business and Human Rights to the media. Application of human rights responsibilities to the media in accordance with the Guiding Principles is significantly complicated by the existence of media rights of freedom of expression. It is argued that the application of the Guiding Principles to the media industry leaves significant scope for it to be involved with serious and systemic human rights violations. This conclusion indicates that the Guiding Principles are an inadequately theorised tool for dealing with human rights responsibilities of the media. It may reveal deeper flaws in the Guiding Principles, which extend to industries other than the media. At the least, a dialogue between the human rights community and the media industry must commence in order to work out how human rights might apply in the context of the responsibilities of one of the world’s most important and powerful industries.
The European Data Protection Directive 95/46/EC requires all European Economic Area (EEA) jurisdictions to provide an equivalent regime protecting the privacy and other fundamental rights and freedoms of natural persons in relation to personal data processing, whilst also shielding media expression from the default substantive requirements as necessary to ensure a balance between fundamental rights. Through a comprehensive coding of the derogations set out in each jurisdiction's data protection laws, this article provides the first systematic analysis of whether this has in fact been achieved. It is demonstrated that there is a total lack of even minimal harmonization in this area, with many laws providing for patently unbalanced results especially as regards the publication of sensitive information, which includes criminal convictions and political opinion, and the collection of information without notice direct from the data subject. This reality radically undermines European data protection's twin purposes of ensuring the free flow of personal data and protecting fundamental rights, an outcome which remains largely unaddressed by the proposed new Data Protection Regulation. Practical suggestions are put forward to ameliorate these troubling inconsistencies within the current process of reform.
In only its second merits judgment, the African Court on Human and Peoples’ Rights (Court) placed strict limits on penalizing expression, especially that of journalists, in states party to the African Charter on Human and Peoples Rights (African Charter). In doing so, the African Court narrowly interpreted the often-criticized “clawback clauses” in the African Charter and relied instead on the tests of necessity, proportionality, and legitimate aim applied by other human rights tribunals to determine the legality of restrictions on rights.
This article uses one case study to explore the use of criminal hate speech provisions against populist politicians. In a high-profile Finnish case, a populist politician was found guilty of hate speech after a four-year criminal process. Though the prosecution was ultimately successful, the various problems with the case helped boost the political popularity of the accused who was turned into a well-known public figure and member of Parliament. The case might thus be seen to warn against tackling populist politicians by means of criminal law. However, further analysis of the political context and a comparison with the Dutch prosecution against anti-immigration politician Geert Wilders complicate this conclusion. This article examines the consequences of hate speech prosecutions of politicians and sheds light on the conditions under which they can achieve (some of) their aims. The case also has lessons for other jurisdictions about when hate speech prosecutions of politicians are likely to be successful in terms of countering prejudice and disempowering those who spread it for electoral purposes.