Judiciary are key to protecting freedom of expression online, concludes UNESCO panel

13 December 2016


Right to left: Hawley Johnson, Guilherme Canela, Edison Lanza, Toby Mendel, Paola Carmona,
Carlos Afffonso Souza, and Marcel Leonardi
© Diego Sierra

UNESCO and the Organization of American States’ Special Rapporteur on Freedom of Expression brought to the fore the role of the judiciary in Internet governance in a lively workshop held last week as part of the 11th Internet Governance Forum in Guadalajara, Mexico.

The workshop, with more than 80 participants, took place Wednesday, 7 December. It built on insights drawn from UNESCO’s work in Latin America to enhance the capacity of judicial officials on issues related to freedom of expression.

Supported by the Government of Sweden through the project “Promoting Democracy and Freedom of Expression”, UNESCO’s activities in this area have included teaching international standards related to freedom of expression to thousands of judges across the region. This has been through a massive open online course (MOOC) and the recent signing of a Memorandum of Understanding between UNESCO and the Iber-American Judicial Summit.

The session opened with a global overview by Toby Mendel, Executive Director of the Centre for Law and Democracy, who highlighted the key challenges facing freedom of expression with regard to the Internet. These include judges’ lack of understanding of the technical implications and the impact on freedom of expression of their decisions.

Another issue is the lack of knowledge of available options, leading to overbroad restrictions such as blocking access to different platforms to a disproportionate extent, he said.

Catalina Botero Marino, Dean of the Faculty of Law at the University of the Andes, spoke by video message, stating the Internet must remain an open, free, global and neutral network, and that judges should protect the conditions necessary for the Internet to provide access to information.

The workshop included a presentation by Hawley Johnson, project manager of Global Freedom of Expression at Columbia, of her organization’s Global Database of Freedom of Expression Case Law. Launched in 2015, the database now includes nearly 800 cases from 125 countries, and seminal cases from Latin America are available in English and Spanish, with the support of UNESCO and other partners.

The Organization of American States’ Special Rapporteur on Freedom of Expression, Edison Lanza, spoke about discussions of the ‘right to be forgotten’ in the region, the importance of journalists’ safety and source protection, and the pressure that judges receive to censor content.

The question of the right to be forgotten was also brought up by Carlos Affonso Souza, founder and director of the Institute for Technology and Society Rio, who spoke about its increased presence in cases in Brazilian courts as an example of the influence that a decision in one country can have on another.

Eugenia Paola Carmona Díaz de Léon, formerly of the Mexican school of judges, addressed the conceptual framework and history of legislation in Mexico on the right of reply.

Marcel Leonardi, senior public policy and government relations counsel at Google Brazil, spoke about the need for transparency regarding judicial decisions, such as through the Marco Civil Observatory, and for more research related to decisions in the lower courts, where most issues arise. He also mentioned that, in Brazil alone, Google is mentioned in more than 3,000 cases currently being assessed by the country’s courts.

Several speakers touched on the challenge introduced by the volume of cases related to Internet issues. The idea of a specialized court on Internet issues was mentioned, but largely discarded by the panelists since the range of issues spans many areas of existing law. Online dispute resolution and an independent administrative body were also proposed as potential alternatives to processing cases through the courts.

Going forward, Guilherme Canela, UNESCO Adviser in the Latin American region, explained that UNESCO will seek to further empower judges to make informed rulings related to Internet issues, consistent with freedom of expression, through again offering a MOOC in Latin America and by creating a new version for the Africa region.