In partnership with UNESCO Columbia Global Freedom of Expression has published the following collection of case law from around the world that upheld international standards during a global pandemic when fundamental freedoms were often under increased threat in the name of public health and security. The case law represented in this collection overall struck a balance between protecting freedom of expression, individual privacy and the public welfare.
Kathumba v. President of Malawi
Decision Date: September 3, 2020
The High Court of Malawi held that the lockdown rules implemented in response to the coronavirus pandemic so significantly impacted fundamental rights that they constituted a derogation of those rights and were therefore unconstitutional. A group of individuals and civil society organizations approached the Court, arguing that the Rules the Minister of Health enacted under the Public Health Act had not been properly implemented and severely infringed a range of constitutionally-protected rights – including the rights to freedom of conscience, religion and association. Although the Minister of Health had revoked the Rules before the hearing, the Court proceeded, holding that it was likely that similar rules could be adopted in the future. The Court found that the restrictions negated the “essential content” of the rights and therefore constituted derogations and not merely limitations of the rights. The Court held that as derogations are only permitted when a state of emergency has been declared and that the rights to freedom of conscience, religion and association could never be derogated, the Rules were unconstitutional.
Mohamed v. President of the Republic of South Africa
Decision Date: April 30, 2020
The North Gauteng High Court in South Africa held that the Covid-19 Regulations that prohibited religious worship in places of worship were a reasonable and justifiable limitation to the rights to dignity and to freedom of religion, movement and association. Two individuals and an Islamic Centre brought an application before the High Court arguing that the Regulations prevented them from fulfilling their religious obligation of attending mosque for their five daily prayers, and sought an amendment to the Regulations to allow for movement between individuals’ places of residence and places of worship. The Court held that the Regulations had been implemented to limit the spread of the coronavirus, and that as they were a rational measure adopted to achieve that objective they were a reasonable and justifiable limitation of the right to freedom of religion.
Kyagulanyi v. Attorney General
Decision Date: January 23, 2021
The Ugandan High Court ruled that the confinement of a presidential candidate, Robert Kyagulanyi – better known as Bobi Wine – to his home by security forces constituted unlawful detention and ordered that the confinement be lifted. In the run up to the election, Kyagulanyi was arrested and charged with infringing the existing Covid-19 Rules on gatherings during his campaign but he was released on bail. On the day of the presidential elections in Uganda, members of the Ugandan police force and army surrounded the presidential candidate’s house, maintaining that containing him and his family to their home was necessary to neutralise security threats. Although being denied access to him, the candidate’s lawyers brought a habeas corpus application in the High Court, arguing that his right to personal liberty was being infringed. Nine days after the election, the Court held that the confinement constituted detention and that as the candidate had not been brought to a police station or a magistrate it was unlawful, and ordered that the restrictions on his movements be lifted and his personal liberty restored.
Hélio Schwartsman v. Minister of Justice and Public Security
Date of Decision: August 25, 2020
A Brazilian Superior Court stayed the investigation into a journalist who had written an article describing the positive outcomes if President Jair Bolsonaro died. The article was written soon after the President tested positive for Covid-19 and argued that his death would save lives, since it would put an end to rhetoric of downplaying the pandemic. The Minister of Justice ordered the Federal Police to initiate an investigation into the journalist for possible violations of the National Security Act. The Court stayed the investigation, holding that the journalist’s alleged conduct did not meet the National Security Act’s requirement of actual or potential harm to territorial integrity, to sovereignty, or democracy.
Federal Council of the Brazilian Bar Association v. President Bolsonaro
Decision Date: May 7, 2020
The Supreme Court of Brazil stayed the implementation of a provisional measure which mandated telephone carriers to share all data of their subscribers with the Brazilian statistics agency. After the scheduled census moved from in-person to telephonic interviews as a result of the Covid-19 pandemic, the Brazilian President enacted the measure, on the request of the statistics agency. The Brazilian Bar Association challenged this measure, arguing that it violated the constitutional protections of the right to privacy, the confidentiality of communications, and respect for private life. The Court held that there was a lack of protective measures and transparency in the measure and that its scope was too broad to justify the significant limitations to the rights to privacy and data protection.
Constitutionality of Legislative Decree 540 of 2020
Decision Date: June 24, 2020
The Constitutional Court of Colombia declared Legislative Decree No. 540 constitutional. The Decree, signed by the President, was enacted under the powers derived from the previous declaration of the state of emergency in the context of the COVID-19 pandemic. The Decree contains two measures aimed at meeting the increased demand for telecommunications services due to the required isolation and social distancing, which created serious challenges for the satisfaction of, among others, the rights to education, work, freedom of expression and access to information. The Court concluded that by reducing administrative burdens for the provision of telecommunications services, as well as the costs of mobile services for the benefit of those with reduced earning capacity, the Decree alleviates hardships resulting from the crisis and contributes to guaranteeing the exercise of fundamental rights and freedoms.
Constitutionality of Legislative Decree 516 of 2020
Decision Date: June 17, 2020
The Constitutional Court of Colombia rendered an opinion on the constitutionality of Legislative Decree No. 516 signed by the President, which was enacted under the powers derived from the previous declaration of the state of emergency in the context of the COVID-19 pandemic. Article 1, which provided for the reduction of the national screen quota during the State of Economic, Social and Ecological Emergency, was deemed unconstitutional. The national screen quota is an instrument that obliges broadcast television operators on national, regional and local channels to include national productions in their programming schedule at certain times and with fixed percentages. The Court concluded that the reduction of the national screen quota may disproportionally affect the right to culture given that the essential public service of television contributes to the development of culture.
Constitutionality of Emergency Decree No. 1074
Decision Date: June 29, 2020
The Constitutional Court of Ecuador rendered an opinion on the constitutionality of the Decree No. 1074 signed by the President regarding the extension of the state of emergency during the COVID-19 pandemic. The Court, which upheld the Decree that provided for the mobilization of the Armed Forces and National Police to reestablish “public order” and the suspension and limitation of the rights of freedom of movement, assembly and association, decided to include in its judgement additional considerations in relation to the right of freedom of expression in the context of the pandemic. Mainly, that the Government must develop measures to close the digital divide facing vulnerable and low-income groups and ensure the broadest possible access to information related to the public health emergency.
Free Speech Union and Young v. Office of Communications
Decision Date: December 9, 2020
England’s High Court of Justice dismissed an application contesting the legality of the UK’s communications regulator’s policy on reporting coronavirus (COVID-19) disinformation. The Free Speech Union and its general secretary argued that the communications regulator had prohibited any discussion which challenges public policy, public health advice, mainstream source of information or otherwise reduces trust in government bodies, by labelling them as “harmful”. The Court found the claimants arguments based around what constitutes “harm” “untenable” as they failed to consider the wider context of the COVID-19 pandemic. Moreover, the UK regulator’s Guidance Notes at issue upheld recommendations presented by the UN Special Rapporteur on freedom of expression. The Court further reasoned that the regulator had not failed in its obligations to protect freedom of expression under Article 10 of the European Convention Human Rights or under domestic law, but rather, its guidance supported the legitimate need of broadcasters to challenge, discuss and consider public policy in a democratic society – particularly during a serious public health crisis.
Halvi v. State of Kerala
Decision Date: August 20, 2020
The High Court of Kerala refused to pass any guidelines in relation to the regulation and control of the print and electronic media as requested by the petitioner. The petitioner had claimed that false and scandalizing news published by the media to malign the image of the judiciary, government functionaries, police force and political leaders violated freedom of speech and expression under Article 19(1)(a) of the Indian Constitution. The judges held that judicial precedents clearly indicate that the general framing of guidelines for regulation of the press was not permissible and that there were enough safeguards for the redressal of the petitioner’s grievance under other laws including the Press Council Act, 1978 and Article 19(2) of the Constitution.
Jacob George v. The Secretary
Decision Date: May 15, 2020
The High Court of Karnataka directed the central government to consider the representations made by the petitioners seeking compensation for media persons and newspaper delivery agents in case of death due to Covid-19. The petitioners contended that the media personnel were largely left out from the compensation schemes being announced by the government for medical and police personnel. After considering the crucial role being played by journalists and media personnel in disseminating and conveying information to the citizens about the impact of the pandemic by risking their own lives, the judge was of the opinion that the journalists were carrying out essential duties just like police, doctors and nurses and that their role in a democracy could not be underestimated or undermined.
Campaign against Hate Speech v. State of Karnataka
Decision Date: May 13, 2020
The High Court of Karnataka refused to pass any order directing the government to frame guidelines in relation to hate speech. The public interest litigation was filed by the Campaign for Hate Speech, an unregistered organization in India, arguing that the government had failed to take appropriate action against the media houses and political leaders indulging in targeting a particular religious community for the outbreak of Covid-19. The judges held that the Indian parliament had not yet thought it appropriate to legislate on the concept of hate speech and a decision in this regard would be outside the purview of judiciary. Furthermore, the judges opined that that there were already substantial and effective remedies in existence for the protection of persons from hate speech in the Indian criminal law.
Hillson v. State of Manipur
Decision Date: July 16, 2020
The High Court of Manipur ordered the state government to share all information with the general public under the Right to Information Act, 2005 in relation to any action taken by it towards combating the COVID-19 crisis including action taken in in connection with spending public money on the infrastructure, manpower and facilities in the quarantine centers. The petitioner submitted that there were insufficient quarantine centres in the districts to accommodate all the returning inhabitants such as students and migrant workers and that the facilities provided in the existing quarantine centres in relation to health, infrastructure, food etc. were poorly regulated and inadequate. Further, they did not follow the guidelines or standard operating procedures issued by the WHO and the National Centre for Disease Control. The judges noted that much of the public outcry regarding the quarantine facilities could have been avoided if the necessary information about the available resources had been shared with the public.
Zainul v. The Chief Secretary
Decision Date: April 22, 2020
The High Court of Madras refused to pass any order directing the government to frame guidelines for visual media regulation to address the dissemination of false news. The public interest litigation was filed by an Advocate, arguing that there was a lack of regulation for visual media and that the spread of false news in both visual and print media during COVID-19 had led to stigmatization of a particular religious community. The judges were of the opinion that a decision regarding regulation of visual media was a matter for the government to explore through statutory provisions, and not the judiciary. Individuals could seek remedy by lodging complaints with the Press council of India and the News Broad Casting Standards Authority, or through criminal prosecution.
Kush Kalra v. Union of India
Decision Date: December 9, 2020
The Supreme Court of India held that neither the State Government nor the Union Territory could paste posters outside the residence of COVID-19 positive persons. The petitioner had contended that affixing posters outside the residences of COVID-19 positive patients violated fundamental rights, including the right to privacy and right to life with dignity. The judges agreed that such a practice was unnecessary, counter-productive, and would lead to stigmatization of people and their treatment as ‘untouchables’. While the judgment was silent on the privacy aspect, as the orders had been withdrawn by different State governments, the judges did hold that such an action could be taken only after directions from the competent authority.