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I

Written Submissions on behalf of the Petitioner

ARGUMENTS ADVANCED

I. THAT TURTONIS’S PROSECTION OF PEAPS UNDER THE ODPA DOES NOT VIOLATES ARTILCE
19 OF ICCPR.
The rights to freedom of expression1 and privacy2 are not absolute.3 Social media poses new
challenges as powerful and virulent platform for many forms of hatred that are directly linked
to real-world violence.4

A. Restriction of freedom of expression must be imposed where such freedom


constitutes harassment
The ICCPR permits restrictions on expression that protect the right to honor, reputation, and
public order.5

i. That post caused harassment to Wani Kola and exposed her to Public hatred in
Turtonia which in turn forced her to resign from her post
Harassment is the basis of criminal liability in certain public order offences. 6 The ECHR
delves into the restrictions of freedoms such as freedom of expression and states that the
same must subsist for the prevention of disorder or crime.7

Feminists, such as Catherine MacKinnon, have argued that any words or pictures which
convey the subordination of women or create a hostile environment for them contribute

1
UDHR (adopted 10 December 1948) UNGA Res 217A (III) art 19; ECHR (adopted 4 November 1950, entered
into force 3 September 1953) 213 UNTS 1932 art 10; ICCPR (adopted 16 December 1966, entered into force 23
March 1976) 999 UNTS 171 art 19(2); ACHR (adopted 22 November 1969, entered into force 18 July 1978) art
13; ACHPR (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58 art 9.
2
UDHR art 12; ECHR art 8; ICCPR art 17(1); ACHR art 11; ACHPR art 6.
3
UDHR art 29(2); ECHR (adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 1932
arts 8(2) and 10(2); ICCPR arts 17(1) and 19(3); ACHR (adopted 22 November 1969, entered into force 18 July
1978) arts 11(2) and 13(2); ACHPR (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM
58 art 9(2); HRC, ‘General Comment 34’ (12 September 2011) UN Doc CCPR/C/GC/34 (‘General Comment
34’) para 21; Recommendation CM/Rec(2014)6 of the Committee of Ministers to Member States on a Guide to
Human Rights for Internet Users (adopted 16 April 2014) para 2.
4
UNHRC, ‘Report of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination,
Xenophobia and Related Intolerance’ (6 May 2014) UN Doc A/HRC/26/49 paras 2, 16–19. See also UNHRC,
‘Report of the Special Rapporteur on Minority Issues’ (5 January 2015) UN Doc A/HRC/28/64 (‘UNHRC
January 2015 Report’) paras 35–42, 76.
5
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March
1976) 999 UNTS 171 (ICCPR) art 19(3); TristánDonoso v Panamá IACtHR (2009) Series C 193, para 110
Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human
Rights, as amended) (ECHR) art 14.
6
Page 178, Freedom of Expression and Freedom of Information : Essays in honour of Sir David Williams,
Beatson and Cripps, Oxford University Press, 2000
7
Article 10(2), ECHR

XVIII
Written Submissions on behalf of the Petitioner

nothing of any value to political debate but offend another constitutional value, that of
equality, and so should not be categorized as protected speech.8

ii. Arbitrary interference in an individual’s private life amounts to an international wrong


and hence, should be prohibited by states

An argument often advanced in the media is that certain individuals like politicians make a
living out of publicity and therefore should not be able to pick and choose when the media
report on their private lives.9

A celebrity who uses every means to promote themselves and their private lives to the public
as part of their career does not deserve the same protection as a star who generally tries to
keep his or her private life out of the media.”10 Someone like Wani Kola was not one who
kept open to the public eye and such images of her caused her a greater violation of privacy
than others. The media plays a vital role in furthering public debate, exposing wrongdoing
and enhancing democracy.11

Elements forming such prohibited discriminatory harassment include the act or conduct being
unwelcome towards a specific person regarded as intimidating, hostile, offensive or
disturbing environment; and, the victim having or likely to have suffered harm – physical,
psychological or emotional.12

Thus, it is clear that such harassment as directed towards Wani Kola, a woman, targeting her
modesty, warrants a grave punishment if not at least a sentence in her favour.

B. Prosecuting Peaps met the legitimate purposes of safeguarding the rights of targeted
individual and maintaining public order.
The Act’s restriction on speech must promote a legitimate government interest.13 The Act
may restrict speech to protect the reputation or rights of others and to prevent disorder and

8
Catherine MacKinnon, ‘Pornography, Civil Rights and Speech’ in Catherine Itzin (ed.), Pornography: Women,
Violence and Civil Liberties (Oxford : Oxford University Press, 1992) 456
9
Chartered Institute for Journalists.

10
Q 1470.

11
Joint Committee on Privacy and Injunctions; House of Lords and House of Commons; Session 2010-2012; 12
March 2012
12
EC Draft Directive and Code of Practice
13
RefahPartisi v Turkey (2003) 37 EHRR 1, para 67; Ricardo Canese v Paraguay IACtHR (2004) Series C No
111, para 96.

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Written Submissions on behalf of the Petitioner

crime.14 Turtonia has a legitimate interest in protecting the rights and reputation of the Kola.15
A state may restrict discriminatory expression that destroys the rights of others,16 which
includes the right to be free from degrading treatment.

Turtonia also has a legitimate interest in restricting the content of the post to maintain order,17
particularly considering the historical and ongoing violence between True Religion and
Turtonia.18 Peaps’ post refers to a disproven yet widespread belief that Kola was involved in
a sex scandal with the leader of the terrorist organisation (True Religion) causing the attacks
in Turtonia, to facilitate the immigration of Aquarians into Turtonia.

C. There was lawful interference with Peaps’ right to privacy to prevent further hatred
amongst Turtonian citizens and punish him for his crime
Individuals are protected from arbitrary and unreasonable interferences with privacy.19
However, the right to privacy is ‘not absolute and restrictions [a]re permitted in view of the
need to protect other guarantees’.20 Peaps had no reasonable expectation of privacy in his
email and IP addresses because he voluntarily turned that information over to Scoops when
he created his “XYZ News 12” account.21

It would be unreasonable22 for Peaps to expect his user identification to remain private when
under authorized investigation. A state may interfere with privacy to prevent disorder,23 deter
crime,24 and protect the rights of others.25 The interference with Peaps’s privacy was justified

14
Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR) art
29(2); International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23
March 1976) 999 UNTS 171 (ICCPR) art 19(3).
15
Ross v Canada Communication No 736/1997 UN Doc CCPR/C/70/D/736/1997 (2000), para 11.5; Féret v
Belgium App no 15615/07 (ECtHR, 16 July 2009), para 55.
16
Vejdeland v Sweden App no 1813/07 (ECtHR, 9 February 2012), para 49; Convention for the Protection of
Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art
17.
17
Féret v Belgium App no 15615/07 (ECtHR, 16 July 2009), para 55.
18
Compromise par a
19
Escher et al v Brazil IACtHR (2009) Series C No 208, para 122; Florida v Jardines133 S Ct 1409, 1414
(2013). See also George E. Edwards, ‘International Human Rights Law Challenges to the New International
Criminal Court: The Search and Seizure Right to Privacy’ (2001) 26 Yale J Intl L 323, 393.
20
Escher et al v Brazil IACtHR (2009) Series C No 208, para 122.
21
United States v Perrine 518 F3d 1196, 1204–05 (10th Cir 2008); Compromis, paras 8.1

22
AtalaRiffo and Daughters v Chile IACtHR (2012) Series C No 239, para 164
23
Klass v Federal Republic of Germany (1978) 2 EHRR 214, para 44.
24
Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR) art
29(2); Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on
Human Rights, as amended) (ECHR) art 8(2).
25
United States v Hensley 469 US 221, 229 (1985).

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Written Submissions on behalf of the Petitioner

by Turtonia’s investigative purpose; the ability to ascertain a person’s identity ‘promotes the
strong government interest in solving crimes and bringing offenders to justice’

II. WHETHER TURTONIA'S PROSECUTION OF SCOOPS UNDER THE ODPA VIOLATES THIS SAME

INTERNATIONAL PRINCIPLE.

Social media, as an unprecedented medium for public discourse, fulfils an important


democratic function.26 By providing anonymity to users, social media platforms encourage
greater participation in the public sphere.27 Hence, whilst states have a duty to regulate their
citizens’ conduct, social media platforms also shoulder certain responsibilities.28

D. Turtonia has lawfully interfered with Scoop’s privacy to prevent crime and disorder

iii. Scoops has no right to privacy as it does not possess the qualities of Natural persons
with privacy interests at stake.

While corporations may possess the right to disseminate information,29 it is unclear if


corporations have the right to privacy.30 First, corporations do not possess the qualities of
natural persons with privacy interests.31 The recognition of the right to privacy arises from a
person’s autonomy, an intrinsic value of being human.32 Secondly, even if ISP like Scoops
assert a derivative right to privacy 33 in defence of the privacy interests of its users, this right
does not extend to shielding suspected criminals from investigation.34 Scoops does not have a
derivative right to privacy in respect of Scoops as it cannot shield a suspected criminal from
investigations.

26
UNHRC May 2011 Report (n 4) para 2; Delfi June 2015 (n 17) para 110
27
UNHRC April 2013 Report (n 10) para 23; UNHRC May 2015 Report (n 9) para 47.
28
UNHRC May 2015 Report (n 9) para 54; Delfi June 2015 (n 17) para 111.
29
News VerlagsGmBH v Austria App no 31457/96 (ECtHR, 11 April 2000) para 39; Federal Election
Commission v Wisconsin Right to Life Inc (2007) 551 US 449, 28–29. See also UDHR art 19(1).
30
Bryce Clayton Newell, ‘Rethinking Reasonable Expectations of Privacy Online Social Networks’ (2011) 17
Richmond Journal of Law and Technology 12, 24; Elizabeth Pollman, ‘A Corporate Right to Privacy’ (2014) 99
Minnesota Law Review 27, 39. See also Federal Communications Commission v AT&T no 09-1279 (131 S Ct
1177) 6.
31
Pollman (n 89) 39. See also Fleck & Associates Inc v City of Phoenix (2006) 471 F 3d 1100 paras 16–18.
32
Nowak (n 28) 377; Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political
Rights: Cases, Materials and Commentary (2nd edition, OUP 2004) para 16.01.
33
Kayla Robinson, ‘Corporate Rights and Individual Interests: The Corporate Right to Privacy as a Bulwark
against Warrantless Government Surveillance’ (2015) 36 Cardozo Law Review 2283, 2294. See also California
Bankers Association v Shultz (1974) 416 US 21, 66; Marshall v Barlow’s Inc (1978) 436 US 307, 313.
34
Pollman (n 89) 58. See also Whalen v Roe (1977) 429 US 589 (‘Whalen’) 599; Nixon v Administrator of
General Services (1977) 433 US 425; Thaddeus Hoffmeister, Social Media in the Courtroom: A New Era for
Criminal Justice (Praeger 2014) 90; Rick Kubler, ‘Recent Development in Discovery of Social Media Content’
(4 March 2015)
<http://www.americanbar.org/content/dam/aba/administrative/litigation/materials/2015_inscle_materials/written
_materials/24_1_recent_developements_in_discovery_of_social_media_content.authcheckdam.pdf>.

XVIII
Written Submissions on behalf of the Petitioner

iv. That prosecution of Scoops was required by the ODPA which is necessary to protect
public order

The ODPA35 sufficiently establishes the circumstances under which privacy interferences are
foreseeable. It is foreseeable that such entities may be required to disclose identifying
information of anonymous users during authorized investigations. The State interfered with
Scoop’s privacy36 pursuant to its legitimate purpose of preventing disorder and crime in its
society.37 State authorities may request and obtain information relating to an individual’s
public life when such information is essential to the interests of society38 and fulfils an
investigative function.39 Further, in order for Turtonia to bring the user behind the post to
justice, it was necessary for Scoops to disclose the email and IP addresses that Peaps used in
connection with the account.

E. Scoop’s freedom of expression was properly restricted pursuant to its duty to


monitor and remove derogatory post from its site.
Attack on someone’s honour has been identified as an invasion of the right to peace of mind,
human dignity and an invasion to privacy.40 The Human Rights Court has acknowledged that
privacy means the right to live privately and protected from publicity.41 The term was
extended to private life which was to include physical and psychological integrity of a person
as in Peck42 and Pretty43 was also established in Goodwin.44

Special considerations are attached to photographs in the field of privacy as they are not
merely a method of conveying information that is an alternative to verbal description as it
enables the person viewing the photograph to act as a spectator. 45

35
Compromise
36
Delfi AS v Estonia App no 64569/09 (ECtHR, 16 June 2015), para 129.
37
Klass v Federal Republic of Germany (1978) 2 EHRR 214, para 44.
38
UNHRC ‘General Comment 16’ in ‘Article 17 (Right to Privacy) The Right to Respect of Privacy, Family,
Home and Correspondence, and Protection of Honour and Reputation’ (1988) UN Doc CCPR/C/GC/16, para 7.
39
United States v Hensley 469 US 221, 229 (1985).
40
Reid and Zimmermann (2000).
41
X versus Iceland (1976)5 D. & R. 86.
42
Peck versus United Kingdom (2003) 36 EHRR 41.
43
Pretty versus United Kingdom (2002) 35 EHRR 1.
44
Goodwin versus United Kingdom (2002) 35 EHRR 18.
45
[2006] QB 125 at 84.

XVIII
Written Submissions on behalf of the Petitioner

i. The prosecution was prescribed by law as Scoops could foresee liability for facilitating
the post of Peaps.

A law must be established before liability is imposed on an entity. 46 A statute is prescribed by


law where it is sufficiently precise.47 ODPA, which holds an ‘entity responsible for
facilitating another’s statement’,48 is sufficiently precise. This is especially so if the entity
carries on professional activities that entail a high degree of caution.49 The Act’s provisions
make it clear that Scoops is ‘liable for any defamatory statements made in its media
publication’.50 Scoop’s responsibility was to monitor and expediently remove speech that
violated the Act was foreseeable.51

ii. That the post spread hatred against Aquarian immigrants thereby caused spreading of
movements against them.

The posts aggravated an ongoing problem in the state of Turtonia which necessitated state
action to curb activities of the perpetrators who were held guilty by the states trial court in
accordance with the relevant evidence produced.52

iii. That the post violated the rights of privacy of Kola and spread hatred and agony
against her in the Turtonian people.

Exposure to Hatred and Ridicule became rampant towards the immigration minister owing to
the dissemination of the post.53 There is an abundance of case law where a claimant has been
54
the subject of a comical or satirical portrayal subjecting him or her to ridicule or contempt

46
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March
1976) 999 UNTS 171 (ICCPR) art 19(3); Compulsory Membership in an Association Prescribed by Law for the
Practice of Journalism (Arts 13 and 29 of the American Convention on Human Rights) Advisory Opinion OC-
5/85,Inter-American Court of Human Rights Series A No 5 (13 November 1985), para 39.
47
Silver v UK App nos 5947/72, 6205/73, 7052/75, 7061/75, 7107/75, 7113/75, 7136/75 (ECtHR, 25 March
1983) (‘Silver’) paras 85–90; Malone v UK App no 8691/79 (ECtHR, 2 August 1984) (‘Malone’) paras 67–68;
Weber and Saravia v Germany App no 54934/00 (ECtHR, 29 June 2006) (‘Weber’) para 23; Editorial Board of
PravoyeDelo and Shtekel v Ukraine App no 33014/05 (ECtHR, 5 August 2011) (‘Editorial Board’) para 51;
Ahmet Yıldırım v Turkey App no 3111/10 (ECtHR, 18 December 2012) (‘Ahmet’) paras 57–59
48
Compromise
49
Sunday Times (n 12) Centro Europa (n 18) para 141;
50
Delfi AS v Estonia App no 64569/09 (ECtHR, 16 June 2015), para 129.
51
Compromise
52
Paragraph 13.1, Factsheet.
53
Gillick v British Broadcasting Corporation [1996] EMLR 267 (CA).
54
(Dunlop Rubber Co. Ltd v Dunlop (1921) [1921] 1 AC 367 (HL). See also Hulton (E) & Co. v Jones [1910] AC 20
(HL)

XVIII
Written Submissions on behalf of the Petitioner

that exposes the person to much hatred and public disgust that eventually led to her
resignation55 from public office.

F. The prosecution was necessitated by democratic principles


Interference is necessary in a democratic society if it: (1) corresponds to a pressing social
need; and (2) is proportionate to the legitimate aims pursued.56

iv. There was a pressing social need to prosecute Scoops as it did not regulate Peaps’ post.

ECtHR57 and the CJEU58 provide factors like the nature of the intermediary; the measures the
intermediary has taken against the user; and the nature of its user content considered in
imposing liability.59

Liability may be imposed on active intermediaries.60 The ECtHR has emphasised the
commercial interest of intermediaries in hosting posts, when imposing liability. 61 An
intermediary is active where it exercises control over its user content, and has knowledge of
its controversial nature.62 Scoops knew of the controversial nature of posts as they had
prompted complaints which were not taken down until 50 hours had passed from
publication63 and till then public uproar had already begun which caused much disorder and
disruption of peace and tranquillity. Also Scoops very business is the hosting of its user
content, this commercial interest justifies requiring Scoops to regulate the post.

55
Paragraph 9.6, Factsheet
56
General Comment 34 (n 3) paras 22, 33–34; UNHRC April 2013 Report (n 10) para 29; Delfi June 2015 (n
17) para 131; Perincek(n 9) paras 196, 228.
57
Payam Tamiz v Google Inc [2013] EWCA Civ 68 (‘Payam Tamiz’) paras 7–8, 13–14, 23–25.
58
Google France, Google Inc v Louis Vuitton Malletier SA C-236/08 (CJEU, 23 March 2010) (‘Google
France’) para 114; L’Oreal SA v eBay C-324/09 (CJEU, 12 July 2011) paras 111–113. See also Alex Comninos,
‘The Liability of Internet Intermediaries in Nigeria, Kenya, South Africa and Uganda: An Uncertain Terrain’
(2012) Association for Progressive Communications 11–12
59
Mathias Klang and Andrew Murray, Human Rights in the Digital Age (Cavendish Publishing 2005) 121–122
60
Eleonora Rabinovich, ‘Challenges Facing Freedom of Expression: Intermediary Liability in Argentine Case-
Law’ (31 March 2012) Association for Civil Rights 9
61
Delfi June 2015 (n 18) paras 112–113, 126.
62
Google France, Google Inc v Louis Vuitton Malletier SA C-236/08 (CJEU, 23 March 2010) (‘Google
France’) para 114
63
Paragraph 9.2, Factsheet

XVIII
Written Submissions on behalf of the Petitioner

III. THAT TURTONIA’S PROSECUTION OF PEAPS UNDER INFORMATION TECHNOLOGY’S ACT


IMAGE IS NOT IN VIOLATION OF ARTICLE 19 OF THE ICCPR.

A. That Turtonia properly restricted Peaps’ freedom of expression to meet its duty
of preventing violence against Aquarians.
The right of freedom is restricted by limitations imposed upon it by a valid law. The
restriction shall be reasonable and for the purposes expressly mentioned in Article 19(2).64

v. There is direct and immediate connection between Peaps’ post on Scoops and the
likelihood or occurrence of violence.

An expression or opinion will not be restricted on this basis unless there is also a direct and
immediate connection between the speech and the likelihood that violence will occur. 65
Political hyperbole is not a true threat that can be suppressed.66 When determining the
likelihood that the post would lead to violence, courts examine contribution to the exchange
of ideas and opinions, the circumstances surrounding the post including the immediacy of the
messages, and the public or private condition of the speech when it was disseminated.67

vi. Peaps was involved in inciting violence by way of irresponsible or reckless journalism.

While it may be true that the statement was made by another, if the content of that statement
is false, the person repeating it is liable, as well as the original publisher.68

Courts have now confirmed the existence 69


of the “responsible journalism” defence in law
although it has been assigned the new name of “responsible communication on matters of
public interest”. The publisher must be shown to be diligent in trying to verify the
allegation.70

The Court notes that satire is a form of artistic expression and social commentary and, by its
inherent features of exaggeration and distortion of reality, naturally aims to provoke and

64
The Scope of the Freedom of the Press: New Trends in Judicial Interpretation; Dr. Madabhushi Sridhar
Acharyulu
65
Media Rights Agenda v Nigeria (2000) AHRLR 262 (ACHPR 2000), paras 69–71; Brandenburg v Ohio 395
US 444, 447–49 (1969).
66
Watts v United States 394 US 705, 708 (1969); Virginia v Black 538 US 343, 359 (2003).
67
Karatas v Turkey App No 63315/00 (ECtHR, 5 January 2010), para 49; Alinak v Turkey App No
40287/98 (ECtHR, 29 March 2005), para 42
68
Dun & Bradstreet, Inc. v. Robinson, 233 Ark. 168, 345 S.W.2d 34 (1961)
69
Cusson v. Quan, 2009 SCC 62 (CanLII)

70
Grant v. Torstar, 2009 SCC 61 (CanLII)

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Written Submissions on behalf of the Petitioner

agitate. Accordingly, any interference with an artist’s right to such expression must be
examined with particular care.71

Thus, it is clear that due to Peaps’ reckless regard towards the truth of the statement he
confidently posted about a public figure, Wani Kola i.e. the subject, suffered to a great extent.
Peaps’ reckless disregard can amount to fraudulent misrepresentation.

It mandates that a party speak with scienter knowledge of a statement’s falsity72 or with
reckless disregard of its truth or falsity.

B. That the restrictions on freedom of expression was legitimate and reasonable.

vii. That the post caused Deprivation of public confidence to kola which lead to resign her
from her post.
Peaps’ post has out rightly violated the Information Act, 2015 by taking away any public
confidence73 that Wani Kola, the subject of the post, had. The ECHR often refers to public
interest as a factor to be weighed against restrictions on freedom of expression and
importance of the role of the media as a “public watchdog.”74 The restriction provided under
this legislation makes the deprivation of public confidence an important factor to curtail
freedom of expression of Peaps. This factor is important as Wani Kola, the subject of the
post, is, in a democratic government,75 a minister and thus without public confidence, cannot
be expected to do her job at all.

viii. Limitations of freedom of expression upon the media was legitimate

As employed by the ECHR, the process takes the form of a three-part test. Firstly, any
restriction on a right must be prescribed by law. Secondly, the restriction must serve one of

71
VereinigungBildenderKünstler vs. Austria, Application No. 68354/01, Judgment of 25 January 2007, para 33.

72
DAN B. DOBBS, THE LAW OF TORTS § 471 (2000) (explaining that the notion of scienter in fraud cases
dates back to a ruling by Lord Herschell in the nineteenth century case of Derry v. Peek, 14 App. Cas. 337 (H.L.
1889)).

73
Paragraph 11.2, Fact Sheet
74
For example Sunday Times v. United Kingdom, Thorgeirson v. Iceland

75
Paragraph 1.1, Fact Sheet

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Written Submissions on behalf of the Petitioner

the prescribed purposes listed in the text of the human rights instrument. finally The
restriction must be necessary to achieve the prescribed purpose.76

In assessing the legitimacy of restrictions, the ECHR allows a “margin of appreciation” to the
state. This means that there is a degree of flexibility in interpretation, which is especially
applicable if the restriction relates to an issue where there may be considerable differences.77

IV. THAT TURTONIA'S PROSECUTION OF SCOOPS UNDER THE IA DOES NOT VIOLATES THIS

SAME INTERNATIONAL PRINCIPLE

It is stated that while states have a duty to regulate its citizens’ conduct, social media
platforms also shoulder certain duties over their users.78

A. Turtonia's restrictions on Scoops freedom of expression are permissible in


international law.
Respondent submits that the freedom of speech and expression,79 is subject to "duties and
responsibilities"'80 that justify its restriction.81 Restrictions on speech in the interests of the
general public are found in almost all the major constitutions82 of the world, and thus are a
general principle of International law.

ix. The Internet, like any other medium, merits restrictions on freedom of speech and
expression due to multiple publication rule and secondary publication.

Respondent submits that the unparalleled diversity of content available on the Internet83
necessitates sovereign regulation.84 International law also does not place any specific bar85 on

76
Freedom of Expression, Media Law and Defamation : A reference and training manual for Europe; Media
Legal Defence Initiative and International Press Institute, February 2015
77
Handyside v. United Kingdom, para. 48; The Sunday Times v. United Kingdom, paras. 79-81

78
UNHRC May 2015 Report (n 9) para 54; Delfi June 2015 (n 18) para 111.
79
Art.19 (3), International Covenant on Civil and Political Rights (Hereinafter ICCPR), G.A. REs. 2200, GAOR, 2
1st Sess., Supp. No.16, UN Doe. A/6316 (1966); Art. 10(2), European Convention for the Protection of Human
Rights and Fundamental Freedoms (Hereinafter European Convention), 213 UNTS 221 (1950); Art. 13,
American Convention on Human Rights (Hereinafter American Convention), 1144 UNTS 123 (1978); Art. 9,
African Charter on Human and People's Rights (Banjul Charter), Org. of African Unity Doc. AB/LEG/67/3/Rev.5
(1981).
80
Art.19 (3), ICCPR, kbid; Art. 10(2), European Convention, Ibid
81
Art.19 (3), ICCPR, Supra Note 2; Art. 10(2), European Convention; Supra Note 43; Arts. 13 and 29, American
Convention, Supra Note 2; Art. 9, Banjul Charter, Supra Note 43
82
RICHARD CLAYTON & HUGH TOMLINSON, THE LAW OF HUMAN RIGHTS 1005 (2000)
83
ACLU v. Reno, 521 U.S. 844 (1997).
84
Jack Goldstein, Against Cyberanarchy, 65 UNIV. Cm. L. REv. 1199 (1998); Lawrence Lessig, The Zones of
Cyberspace, 48 STAN. L. REV. 1403, 1405 (1996); Note, Cyberspace Sovereignty? -. The Internet and the
International System, 10 HARv. J. L. & TECH. 647 (1997).

XVIII
Written Submissions on behalf of the Petitioner

the regulation of content available on the Internet; therefore Turtonia can undertake such
regulation.86 Moreover, many countries like United States, Germany, France, regulate content
available to their citizens through the Internet.87

Respondent submits that each publication of a defamatory statement, publication or broadcast


gives rise to a separate cause of action which is subject to its own limitation period and is
known as the ‘multiple publication rule.’88 Material published by online media is not ‘stale’
because the immediacy of access across the world makes the impression more permanent.89

x. Restrictions on Peaps post are necessary in light of its social and cultural history.

Respondent submits that the freedom of speech and expression can be validly restricted based
on socio-cultural and historical peculiarities.90 Hence states are granted wide latitude 91
to
ascertain the necessity of restrictions92 keeping in mind domestic cultural traditions and
values.93 This internal conflict between true religion and Turtorians requires the restriction on
the Peaps post so that public order can be maintained.

B. International law permits restrictions for securing the right to equality of others and
maintenance of public morality.
International law through General Assembly Resolutions94 recognizes restriction on
expression advocating incitement to national, racial and religious hatred.

xi. The post has created hatred and ridicule against kola amongst citizens of Turtonia.

International law does not confer an unfettered freedom of speech and expression when it
infringes the rights of other individuals.95 The expression of that endangers the rights,

85
Supra Note 44
86
The Case Concerning the SSLotus (France v. Turkey), 1927 PCIJ Ser. A No. 10
87
Lyombe Eko, Many Spiders, One Worldwide Web: Towards a Typology of Internet Regulation, 6 CoMM L &
POL'Y 445 (2001).
88
Duke of Brunswick v Harmer (1849). [1849] 14 QB 185.
89
Reynolds v Times Newspapers Ltd [1998] 3 All ER 961 at 995a (CA).
90
Art 22, Cairo Declaration, 1990 Cited From ; Principle 8, The Bangkok Declaration, 1993 Cited From
91
Mukong v. Cameroon, (1995) 2 IHRR 131; Handyside v. United Kingdom, (1976) 1 EHRR 737; Louis HENKIN
(ED.), THE INTERNATIONAL BILL OF RIGHTS: THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
220 (1981).
92
Faurisson v. France, (1996) 4 THRR 444.
93
P.R.Gandhi, The Human Rights Committee and the Right of Individual Communication, 57 BRIT. Y. B. INT'L L.
201, 203 (1986).

94
G.A. RES. 36/162, U.N. GAOR, 36th Sess., Supp. No. 51, at 191-92, U.N. Doc. A/36/51 (1981).
95
Art. 2, Universal Declaration of Human Rights (Hereinafter UDHR), G.A. REs. 217, UN Doc. A/180 (1948); Art.
19(3)(a), ICCPR, Supra Note44.

XVIII
Written Submissions on behalf of the Petitioner

freedoms and reputations of others, and constitutes an assault on the right to dignity of the
individual96 which is the very foundation of all human rights.97 Facts .....

C. There is no clear understanding in international law as to the content of the right to


information
Respondent asserts that there exists no clear right to information under international law.98
Furthermore, even if the existence of freedom of information is assumed, at most it is an
abstract principle that means different things to different people.99 The concrete application
of freedom of information is entirely ambiguous, but its inclusion within the freedom of
speech and expression would imply that it is subject to restrictions that apply to speech under
Art. 19 of the ICCPR.100

96
Human Rights Committee, Advocacy of Racial Hatred and Admissibility of a Communication: Case of Taylor v.
Canada [Communication No. R. 24/104 (1981)], Cited from 4 HuM. RTS. L.J. 194 (1983); IRWIN COTLER,
FREEDOM OF EXPRESSION IN THE LIMITATION OF HUMAN RIGHTS IN COMPARATIVE CONSTITUTIONAL LAW
377 (1986).
97
98
Freedom of Information and Communication, 2 EPIL 976, 981 (1995).
99
H.Kleinwachter, Human Rights, the Right to Communicate and International Law, 10 JOUR. MEDIA LAW &
PRAC. 28 (1989); M.Bullinger, Freedom of Expression and Information: An Essential Element of Democracy, 28
GER YR BOOK INT'L LAW 88 (1985); See also MARIKA NATASHA TAISHOFF, STATE RESPONSIBILITY AND THE
DIRECT BROADCAST SATELLITE 25 (1987); Theodore M. Hagelin, Prior Consent or the Free Flow of Information
over International Satellite Radio and Television: A Comparison and Critique of U.S. Domestic and International
Broadcast Policy, 8 SYRACUSE J. INT'L L. & COM. 265, 267-68 (1981).
100
ibid

XVIII
Written Submissions on behalf of the Petitioner

PRAYER

Wherefore, in the light of facts stated, issues raised, arguments advanced and authorities
cited; it is most humbly and respectfully prayed before The Hon’ble Court that it may be
pleased to:

Allow the appeal and set aside the judgement which has been passed by the High
Court.

And pass any other order or grant any other relief in favor of the petitioner, which this
Honorable Court may deem fit to meet the ends of justice, equity and good conscience.

All of which is most humbly and respectfully submitted.

Date: 28 of August, 2017

Place: India

Sd/-

Counsels for the Appellants

XVIII

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