Columbia Global Freedom of Expression Prize Winners 2015
Prize Winners 2015
For Excellence in Legal Services
Media Legal Defence Initiative: Lohé Issa Konaté v. The Republic of Burkina Faso
The Media Legal Defence Initiative (MLDI) is a non‐governmental organization established in 2008 to provide legal defense to independent media, journalists and bloggers. MLDI works with a large network of partner organisations and individual lawyers around the world. In 2014, it won significant judgments including Konate v. Burkina Faso at the African Court on Human and Peoples’ Rights, which held that no journalist should ever be imprisoned for defamation; the Zambian case of Sakala and Mwanza, which declared the penal code provisions prohibiting the publication of “false news” to be unconstitutional; James Dorsey’s case in Singapore, in which the Court of Appeals recognized the right of a blogger to maintain the confidentiality of journalistic sources; and the case of IR magazine in Latvia which led to legislative change preventing the freezing of assets of media outlets pending litigation.
MLDI’s pleadings to the African Court on Human and Peoples’ Rights in the case of Lohé Issa Konaté v. Burkina Faso positioned the case as an opportunity for the African Court to build on the freedom of expression law and principles laid down by the European and Inter‐American human rights courts. The pleadings argued that imprisonment for defamation has never been allowed in these two jurisdictions, and that this should be the baseline from which the African Court should build its own jurisprudence. MLDI Legal Director Nani Jansen’s arguments, delivered with John Jones QC and Steven Finizio, persuaded the Court to deliver a groundbreaking judgment holding that the imprisonment of a journalist for defamation, and the use of criminal law against journalists generally violate the right to freedom of expression. This was the African Court’s first free‐speech case. The ruling represents a high‐water mark for freedom of expression in Africa.
For a Significant Legal Ruling
1.The Constitutional Court of Zimbabwe: Nevanji Madanhire and Nqaba Matshazi v. Attorney‐General
The Constitutional Court of Zimbabwe (CCZ) was created by the 2013 Constitution, adopted after protracted negotiations between Robert Mugabe’s ruling ZANU‐PF and Morgan Tsvangirai’s Movement for Democratic Change under a mediated Government of National Unity.
In Madanhire & Another v. Attorney‐General, the CCZ delivered a unanimous judgment striking down the offence of criminal defamation as unconstitutional, citing international, regional standards and Zimbabwean standards on freedom of expression, and jurisprudence. The essence of the CCZ’s reasoning may be found in its conclusion: “the harmful and undesirable consequences of criminalising defamation, viz. the chilling possibilities of arrest, detention and two years imprisonment, are manifestly excessive in their effect. Moreover, there is an appropriate and satisfactory alternative civil remedy that is available to combat the mischief of defamation. Put differently, the offence of criminal defamation constitutes a disproportionate instrument for achieving the intended objective of protecting the reputations, rights and freedoms of other persons.” The decision of the Constitutional Court of Zimbabwe, as the sole authority to interpret the Constitution, binds the lower courts and establishes the judicial precedent concerning the unconstitutionality of Section 96 of the Criminal Law under the country’s former Constitution.The Madanhire judgment had the immediate effect of thawing the chilling effect inflicted on journalistic practice by the imposition of criminal defamation.
The decision is among a few judicial rulings rendered by African national courts, which found that the criminalization of defamatory statements imposes serious restrictions on freedom of expression and access to public information.
2. The Constitutional Court of Turkey
The Constitutional Court of Turkey rendered three bold judgments in 2014, which expanded protection of online freedom of expression. The Court lifted bans on Twitter and YouTube as well as invalidated an Internet law that restricted access to the Internet, limiting the authority under which the government, in this case the Turkish Presidency of Telecommunication and Communication (TIB), could restrict access to social media.
The Court took extraordinary measures in response to a series of actions severely restricting freedom of expression. In February of 2014, a controversial new Internet law (Law No.5651) permitted the TIB to block websites without a court order. On March 20th, 2014, the TIB banned Twitter for refusing to withdraw content which Turkish courts ruled violated the right to privacy. A week later, the TIB issued a ban on YouTube stating that certain recordings which had been leaked on the site posed possible threats to national security.
Akdeniz v. The Presidency of Telecommunication and Communication (TIB)
Quoting extensively from the judgments of the European Court for Human Rights, the Constitutional Court reasoned that freedom of expression is one of the “foundations of a democratic society and it is among the indispensable conditions for the development of the society and the self‐ development and self‐realization of the individual.” It emphasized that the Internet has a “significant instrumental importance in modern democracies in terms of the exercise of fundamental rights and freedoms, specifically of the freedom of expression. The social media platform that the Internet provides is of an indispensable quality for individuals to express, mutually share and disseminate their information and thoughts.” The Court concluded that the Presidency of Telecommunication and Communication’s blocking of Twitter was unconstitutional.
YouTube Corp. v. The Presidency of Telecommunication and Communication (TIB)
The Court unanimously ruled that the YouTube ban was a violation of free speech, which is guaranteed by Article 26 of the Constitution: “Everyone has the right to express and disseminate his or her thoughts and opinion by speech, in writing, pictures or through other media, individually or collectively.”
Decision on Omnibus Bill No. 6552 amending the Internet Law No. 5651
On October 2, 2014, the Turkish Constitutional Court annulled amendments to the Turkish Internet Law No. 5651 that permitted the government to block certain websites without a court order for reasons of “national security, the restoration of public order, or to prevent a crime from being committed.”
Quoting extensively from the European jurisprudence, the Court found that the amendments to Internet Law No. 5651 “has created serious obstacles to ensuring a knowledge‐based, information society; [and] has led to applications that are inconsistent with freedom of expression and other basic human rights issues related to European Union Law.”