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Memorial for A | TC: 216A

BEFORE THE
UNIVERSAL FREEDOM OF EXPRESSION COURT

In the matter of,


Article 19 of U.D.H.R. and I.C.C.P.R.
Appeal No. - _______/2017

PRICE MEDIA LAW MOOT COURT COMPETITION, 2016/17


APPLICANT

DEFENDANT

Ballaya and SeeSey

VERSUS

State of Amostra

BEFORE SUBMISSION TO

THE HONOURABLE PANEL OF


UNIVERSAL FREEDOM OF EXPRESSION COURT

MEMORAMDUM ON BEHALF OF THE APPLICANT


[Word Count: 4982]

MEMORIAL FOR APPLICANT


PRICE MEDIA LAW MOOT COURT COMPETITION

TABLE OF CONTENTS
1.

LIST OF ABBREVIATION

ii-iii

2.

LIST OF AUTHORITIES

iv-xviii

3.

STATEMENT OF RELEVANT FACTS

xix-xxi

4.

STATEMENT OF JURISDICTION

xxii

5.

QUESTIONS PRESENTED

xxiii

6.

SUMMARY OF ARGUEMENTS

7.

ARGUMENTS ADVANCED

xxiv-xxvii
1-27

A. Whether Amostras prosecution of Ballaya under the SIA violates international


principles, including Article 19 of Universal Declaration of Human Rights (UDHR)
and Article 19 of the International Covenant on Civil and Political Rights
(ICCPR).1-9
B. Whether Amostras prosecution of Ballaya under the ESA violates international
principles, including Article 19 UDHR and Article 19 of the ICCPR..10-14
C. Whether Amostra has jurisdiction to obtain and enforce the civil order against
SeeSey in Amostra and Sarranto..15-20
D. Whether Amostras civil order against SeeSay violates international principles,
including Article 19 of UDHR and Article 19 of the ICCPR..21-27
8.

PRAYER

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LIST OF ABBREVIATIONS
ACHPR

African Charter on Human and Peoples Rights

IACHR

Inter-American Commission on Human Rights

ACHR

American Convention on Human Rights

ACommHPR

African Commission on Human and Peoples Rights

App

Application

Art.

Article

ATEL

Anti-Terrorism & Extremism Law of 2012

CERD

Committee on the Elimination of Racial Discrimination

CJEU

Court of Justice of the European Union

ECHR

Convention for the Protection of Human Rights and Fundamental Freedoms

ECtHR

European Court of Human Rights

ESA

Election Safety Act

EU

European Union

HRC

Human Rights Committee

IACtHR

Inter-American Court of Human Rights

ICCPR

International Covenant on Civil and Political Rights

ICTR

International Criminal Tribunal for Rwanda

OHCHR

United Nations Office of the High Commissioner for Human Rights

SCOTUS

Supreme Court of the United States of America

SIA

Stability and Integrity Act

UDHR

Universal Declaration of Human Rights

UK

United Kingdom

UN

United Nations

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UNESCO

United Nations Educational, Scientific and Cultural Organisation

UNGA

United Nations General Assembly

UNHRC

United Nations Human Rights Council

US

United States of America

v.

Versus

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LIST OF AUTHORITIES
DECLARATIONS, TREATIES, AND CONVENTIONS
European Convention on Human Rights adopted 4 November 1950, entered into force (3
September 1953) 213 UNTS 1932 .......................................................................................... 22
STATUTES
Third Restatement, Foreign Relations Law (U.S.) ..................................................................... 15

CASES
CASES FROM ECtHR
Ahmet Yldrm v. Turkey App no 3111/10 (ECtHR, 18 December 2012) (Ahmet) paras 5759
................................................................................................................................................... 3
Al-Skeini and Others v. the United Kingdom App no. 55721/07 (ECtHR, 7 July 2011) ........... 15
Axel Springer AG v. Germany App no. 39954/08 (ECtHR, 7 February 2012) ......................... 24
B.H, M.W, H.P & G.K. v. Austria App no. 12774/87 (ECtHR, 12 October 1989); ................... 13
Belpietro v. Italy App no. 43612/10 (ECtHR,24 September 2013) ............................................ 7
Bladet Troms and Stensaas v. Norway App no. 21980/93 (ECtHR, 20 May 1999). ............... 23
Calogevo Diana v. Italy Appl. No. 15211/89, (EtCHR, 15 November 1996) para 32-33; .......... 4
Colombani and Others v. France App No. 51279/99 (EctHR, 25 June 2002)............................. 8
Communist Party of Germany v. the Federal Republic of Germany App No. 250/57 (ECtHR,
20 July 1957) ........................................................................................................................... 13
Cox v. Turkey App no. 2933/03 (ECtHR, 20 May 2010) ........................................................... 26
Cumpn and Mazre v. Romania [GC] App no. 33348/96 (ECtHR, 17 December 2004) ...... 24
De Haes and Gijsels v. Belgium App No. 19983/92 (ECtHR, 24 February 1997) ..................... 26
Domenichini v. Italy Appl. No. 15943/90 (EtCHR, 15 November 1996). ................................... 4

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Editorial Board of Pravoye Delo and Shtekel v. Ukraine App no 33014/05 (ECtHR, 5 August
2011) (Editorial Board) para 51.............................................................................................. 3
Eon v. France, App No 26118/10 (ECtHR, 14 March 2013) para 58 .......................................... 8
Ezelin v. France App No. 11800/85 (ECtHR, 26 April 1991). ............................................. 12,14
Giniewski v. France, App No 64016/00 (ECtHR, 31 January 2006) (Giniewski) para 43. ....... 2
Grinberg v. Russia, App No. 23472/03, (ECtHR, 21 July 2005) ................................................. 8
Gneri and Others v. Turkey Comm No. 42853/98, (ECtHR , 12 July 2005............................. 14
Halford v. The United Kingdom App No. 20605/92 (EtCHR, 25 June 1997) ............................. 4
Handyside v. United Kingdom App no. 5493/72 (ECtHR, 7 December 1976). ............. 2, 5, 8, 22
Janowski v. Poland, App No. 25716/94 (EtHRC, 21 January 1999) ........................................... 5
Kenedi V. Hungary App no. 31475/05 (ECtHR, 26 May 2009). ............................................... 27
Klass and others v. Germany App No. 5029/71 (EtCHR, 6 September 1978); ........................... 4
Kopp v. Switzerland App No. 23224/94 (EtCHR, 25 March 1998) ............................................. 4
Krasulya v. Russia App No. 12365/03 (ECtHR, 22 February 2007) ........................................... 9
Kruslin v. France App No 11801/85 (EtCHR, 24 April 1990); .................................................. 4
Leander v. Sweden App no. 9248/81 (ECtHR, 26 March1987) para51 ....................................... 4
Lindon, Otchakovsky-Laurens and July v. France [GC], App nos. 21279/02 and 36448/02
(ECtHR, 22 October 2007).................................................................................................. 5, 24
Lingens v. Austria App no. 9815/82.(ECtHR, 8 July 1986) Series A no. 103 ....................... 5,7,8
Malone v. The United Kingdom App no. 8691/79 (EtCHR, 2 August 1984) ............................ 3,4
Maronek v. Slovakia App No. 32686/96 (EtHRC, 19 April, 2001).............................................. 5
Marques v. Angola Comm No. 1128/2002 (ECtHR, 29 March 2005 .......................................... 8
Morice v. France [GC] App no. 29369/10 (ECtHR, 23 April 2015) ......................................... 24
Mosley v. the United Kingdom App no. 48009/08 (ECtHR, 10 May 2011) ............................. 23
Mouvement Raelien Suisse v. Switzerland App no.16354/06, (EtHRC, 13 July 2012) . ......... 6,25

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Mouvementralien Suisse v. Switzerland [GC] App no.16354/06 (ECtHR, 13 July 2012 ..... 24
News Verlags Gmbh and Cokg v. Austria App no. 31457/96 (ECtHR, 11 January 2000)......... 26
Nikula v. Finland, App no. 31611/96 (EtHRC, 21 March 2002). ................................................ 5
Niskasaari and OtavamediaOy v. Finland App no. 32297/10, (ECtHR 23 June 2015 ............... 23
Oberschlick v. Austria (no. 2) App No. 20834/92 (ECtHR, 1 July 1997) .................................. 24
Observer and Guardian v. the United Kingdom App No. 13585/88 (ECtHR,26 November 1991
................................................................................................................................................. 23
sterreichische Vereinigung Zur Erhaltung, Strkung Und Schaffung Eines Wirtschaftlich
Gesunden Land- Und Forstwirtschaftlichen Grundbesitzes v. Austria App no. 39534/07
(ECtHR, 28 November 2013).................................................................................................. 27
Otegi Mondragon v. Spain, App No. 2034/07 (ECtHR, 15 March 2011). ................................... 8
Ouranio Toxo and Others v. Greece App No. 74989/01 (ECtHR, 20 October .......................... 14
Oya Ataman v. Turkey App No. 74552/01 (ECtHR, 5 December 2006 ..................................... 14
Nachtmann v. Austria App No. 36773/97 (ECtHR, 9 September 1998) 13 Pellegrini v Italy App
no. 30882/96 (ECtHR, 20 July 2001)...................................................................................... 20
Renaud v. France Comm. No. 13290/07 (EtHRC, 25 Feburary 2010) para 149 ......................... 6
Plattform rtze fr das Leben v. Austria App No. 10126/82 (ECtHR, 21 June 1988................ 13
Primov and Others v. Russia Application no. 17391/06 (ECtHR, 12 June 2014 ....................... 12
Refah Partisi (The Welfare Party) and Others v. Turkey, App Nos. 41340/98, 41342/98,
41343/98 and 41344/98 (ECtHR, 13 February 2003) para. 50-85 ............................................ 3
Roche v. the United Kingdom [GC] App no.32555/96 (ECtHR, 19 October 2005) .................. 27
Schimanek v. Austria App No. 32307/96 (ECtHR, 1 February 2000). ....................................... 13
ener v. Turkey, App No. 26680/95 (ECtHR, 18 July 2000) (ener) para 40. .......................... 2
Silver v. UK App nos 5947/72, 6205/73, 7052/75, 7061/75, 7107/75, 7113/75, 7136/75
(ECtHR, 25 March 1983) (Silver) ; ........................................................................................ 3

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Srek v. Turkey(no. 1) App no. 26682/95 (ECtHR, 8July 1999)................................................ 24


Trsasg A Szabadsgjogokrt (Hungarian Civil Liberties Union) v. Hungary App no.
37374/05 (ECtHR, 14 April 2009) .......................................................................................... 27
The Sunday Times v. United Kingdom, App no 6538/74 (ECtHR, 26 April 1979) (Sunday
Times) para. 45; ....................................................................................................................... 3
Thoma v. Luxembourg App. No. 38432/97(EtHRC, 29 March, 2001) para 67, 84; .................... 5
Timpul Info-Magazin and Anghel v. Moldova App no. 42864/05 (ECtHR,27 November 2007)
................................................................................................................................................. 23
Vereinigung Demokratischer Soldaten sterreichs and Gubi v. Austria App No. 15153/89
(EtCHR, 19 December 1994) para 29 ....................................................................................... 4
Vides Aizsardzbas Klubs v. Latvia, Application No 57829/00 (ECtHR, 27 May 2004).8
Weber and Saravia v. Germany App no 54934/00 (ECtHR, 29 June 2006); ............................... 3
Willem v. France App no. 10883/05 (ECtHR, 16 July 2009)..................................................... 24
Youth Initiative For Human Rights v. Serbia App no 48135/06 (ECtHR, 25 June 2013) ......... 27
Ziliberberg v. Moldova App No.61821/00 (ECtHR, 4 May 2004) ............................................. 14

CASES FROM HRC


Ballantyne, Davidson, McIntyre v. Canada Comm No. 359/1989 and 385/1989. (HRC, 31
March 1993) .............................................................................................................................. 7
Benhadj v. Algeria comm No. 1173/2003 (HRC,20 July 2007) ................................................. 21
Dissanayake v. Sri Lanka UN Doc CCPR/C/93/D/1373/2005 (HRC, 4 August 2008) ............... 3
Fernando v. Sri Lanka, Comm No. 1189/2003 (HRC, 31 March 2005) .................................... 7
Lee v. the Republic of Korea Comm No. 1119/200220 (HRC, July 2005) ................................ 13
Leonardus Johannes Maria de Groot v. The Netherlands U.N. Doc. CCPR/C/54/D/578/1994
(HRC, 24 July 1995). ................................................................................................................ 3

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Marques de Marques v. Angola, UN Doc CCPR/C/83/D/1128/2002 (HRC, 29 March 2005) .... 2


Mika Miha v. Equatorial Guinea Comm No. 414/1990 (HRC, 8 July 1994) .............................. 7
Mika Miha v. Equatorial Guinea U.N. Doc. CCPR/C/51/D/414/1990 Comm No. 414/1990
(HRC, 8 July 1994) ................................................................................................................... 7
Monja Jaona v. Madagascar UN Doc Supp No. 40 (A/40/40) at 179 (1985) (HRC, 6 April
1984).......................................................................................................................................... 3
Morais v. Angola Comm No. 1128/2002 (HRC, 18 April 2005), para. 6.8. ................................ 7
Mpaka-Nsusu v. Zaire Comm No. 157/1983 (HRC, 26 March 1986) ......................................... 7
Mr. Vladimir Velichkin v. Belarus, Comm No. 1022/2001 (HRC, 20 October 2005) ................. 8
Mr. Zeljko Bodrozic v. Serbia and Montenegro Comm No. 1180/2003 (HRC, 31 October 2005)
................................................................................................................................................... 8
Mukong v. Cameroon UN Doc CCPR/C/51/D/458/1991 (HRC, 10 August 1994) para. 9 ......... 3
Patrick Coleman v. Australia, Comm No. 1157/2003 (HRC,17 July 2006) ................................ 7
Rakim Mavlonov and Mr. Shansiy Sadi v. Uzbekistan, Comm No. 1334/2004 (HRC,19 March
2009).......................................................................................................................................... 8
Robert W Gauthier v. Canada UN Doc CCPR/C/65/D/633/1995 (HRC, 7 April 1999) ............. 3
Ross v. Canada Comm No. 736/1997 (HRC, 17 July 2006); ....................................................... 7
Tae Hoon Park v. Republic of Korea Comm No. 628/1995 (HRC, 5 July 1996) ...................... 21
Toonen v. Australia, U.N. Doc CCPR/C/50/D/488/1992 (HRC, 31 March 1994)....................... 5
Velichkin v. Belarus, UN Doc CCPR/C/85/D/1022/2001 (HRC, 20 October 2005) ................... 3
Viktor Korneenko et al. v. Belarus UN Doc CCPR/C/88/D/1274/2004 (HRC, 10 November
2006).......................................................................................................................................... 3

CASES FROM IACtHR


Autronic AG v. Switzerland (IACtHR, 22 May 1990) Series A no. 178 .................................... 26

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Claude-Reyes et al.v. Chile (IACtHR, 19 September 2006) Series C No.151 ................... 2,22
Herrera-Ulloa v. Costa Rica (IACtHR, 2 July 2004) Series C No. 107 ..................... 2,7,22
Ivcher Bronstein v. Peru (IACtHR, 6 Feburary, 2001) para 149 ................................................. 6
Palamara Iribarne v. Chile (IACtHR, 22 November 2004) Series C No 135; Kimel v.
Argentina (IACtHR, 2 May 2008) Series C No 177. ................................................................ 7
Perozoet al. v. Venezuela (IACtHR, 28 January 2009) Series C No. 195. .............................. 2,22
Ricardo Canese v. Paraguay (IACtHR, 31 August 2004) Series C No 111 ........................ 2,7,22
Ros et al. v. Venezuela (IACtHR, 28 January 2009) Series C No. 194 ................................. 2,22

UK CASES
Agassi v. Robinson (Inspector of Taxes) [2006] UKHL ............................................................. 17
Al Sabah v. Grupo Torras SA & Another [2005] 2 AC 333 ....................................................... 17
Al-Skeini v. Secretary of State for Defence [2007] UKHL 26 .................................................... 17
Bank of Ottawa v. Esdale [1920] 1 W.W.R. 913........................................................................ 20
Bonn v. National Trust Co. Ltd. [1930] 65 O.L.R. 633 .............................................................. 20
British American Investment Co. v. Flawse [1911] 19 W.L.R. 253 ........................................... 20
Burchell v. Burchell [1926] 58 O.L.R. 515 ................................................................................ 20
Burn v. Bletcher [1863] 23 U.C.Q.B. 28 (C.A.) ......................................................................... 20
Capital Nat. Bank v. Merrifield [1968] 1 O.R. 3 ........................................................................ 20
Clark (Inspector of Taxes) v. Oceanic Contractors Inc. [1983] 2 AC 130 ................................ 17
Curtis v. Curtis [1943] O.W.N. 382 ........................................................................................... 20
Evans v. Evans [1912] 50 S.C.R. 262 ......................................................................................... 20
Fairchild v. McGillivray [1910] 16 W.L.R. 562 ........................................................................ 20
Lawson v. Serco Limited [2006] UKHL ..................................................................................... 17
Mattar and Saba v. Public Trustee [1952] 3 D.L.R. 399 (CA.) ................................................. 20

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Queen v. Wright [1877] 17 N.B.R. 363 (C.A.); .......................................................................... 20


Schneider v. Woodworth [1884] 1 Man. R. 41 ........................................................................... 20
State Bank of Butler v. Benzason [1914] 27 W.L.R. 812; .......................................................... 20
Vezina v.Will H. Newsome [1907] 14 O.L.R. 658 ...................................................................... 20
Webster MacLaughlan Co. v. Connors Bros. Ltd. [1936] 2 D.L.R. 164 (C.A.) ......................... 20
Willie v. Martin [1931] 3 W.W.R. 465 (B.C.); ........................................................................... 20
US CASES
Bachchan v. India Abroad Publications Inc.(1992) 585 N.Y.S.2d 661 ..................................... 20
Canadian Pacific Railway Co. v. The Great Western Telegraph Co. (1889) 17 S.C.R. 151 ..... 20
Gates Learjet Corp. v. James B. Jense (1984) 743 F.2d 1325 .................................................. 20
Hilton v. Guyot (1895) 159 U.S. 113 .......................................................................................... 20
Lauritzen v. Larsen ..................................................................................................................... 17
Mannington Mills, Inc v. Congoleum Corp (1979) 595 F 2d 1287 ............................................ 16
Monette v. Larivire (1926) 40 B.R. 350 ..................................................................................... 20
New York Times Co. v. Sullivan (1964) 376 U.S. 254. ................................................................. 6
Pen noyer v. Neff (1878) 95 U.S. 714 ......................................................................................... 17
Sarl Louis Feraud International v. Viewfinder Inc. (2005) 406 F.Supp .2d 274 ....................... 19
Stevens v. Fisk (1884), Cameron Supreme Court Cases 392 ...................................................... 20
Timberlane Lumber Co v. Bank of America (1983) 574 F. Supp1453 ....................................... 16
Vladimir Matusevitch v. Vladimir Ivanovich Telnikoff (1995) 877 F. Supp. 1 .......................... 19
Wanderers Hockey Club v. Johnson (1913), 25 W.L.R. 434, 18 B.C.R. 367, 14 D.L.R. 42
(C.A.)....................................................................................................................................... 20
World-Wide Volkswagen Corp. v. Woodson, (1980) 444 U.S. 286, 292 .................................... 17
Yahoo! Inc. v. La Ligue Contrele Racisme et lAntisemitisme (2001) 169 F. Supp. 2d 1181 .... 19

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CASES FROM OTHER COURTS AND INTERNATIONAL TRIBUNALS

Pez Hejduk v. EnergieAgentur.NRW GmbH Regulation (EC) No 44/2001 (CJEU 22 January


2015 ......................................................................................................................................... 17
S.S. Lotus, France v. Turkey (ICJ, 7 September 1927) ............................................................... 19

OTHER AUTHORITIES
A Bianchi, Reply to Professor Maier ....................................................................................... 16
Declaration of Principles, Building the Information Society: a global challenge in the new
Millennium, X(12 December 2003) WSIS-03/GENEVA/DOC/4-E, available from:
<http://www.itu.int/wsis/docs/geneva/ official/dop.html.> .................................................... 26
HG Maier, Jurisdictional Rules in Customary International Law, in KM Meessen (ed),
Extraterritorial Jurisdiction in Theory and Practice (1996) .................................................... 16
Office for Democratic Institutions and Human Rights (ODIHR) of the Organization for
Security and Cooperation in Europe(OSCE), Guidelines on Freedom of Peaceful Assembly
(2nd edition, 2010), para. 30..................................................................................................... 14
PS Berman, Globalization of Jurisdiction, (2002) Vol 151 U.Pa.L. Rev 311 ......................... 16
Report on The Situation of Human Rights Defenders In the America ( 7 March, 2006)
SOEA/Ser.L/V/II.124, Doc. 5 rev.1 para. 79. ........................................................................... 6
UDHR; Office for Democratic Institutions and Human Rights (ODIHR) of the Organization for
Security and Cooperation in Europe(OSCE), Guidelines on Freedom of Peaceful Assembly
(2nd edition, 2010) ................................................................................................................... 12
UN DOCUMENTS
Concluding observations on Japan (CCPR/C/JPN/CO/5). ........................................................... 8

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HRC, General Comment 25: Article 25 (Participation in Public Affairs and the Right to Vote),
The Right to Participate in Public Affairs, Voting Rights and the Right of Equal Access to
Public Service (12 September 2011) UN Doc CCPR/C/21/Rev.1/Add.7 ............................... 5
HRC, General Comment 32 (23 August 2007) UN Doc CCPR/C/GC/32 (General Comment
32) ............................................................................................................................................ 3
HRC, General Comment 34 (12 September 2011) UN Doc CCPR/C/GC/34 (General
Comment 34) ............................................................................................................... 3, 21, 27
ICCPR, Concluding Observations on the Fourth Periodic Report of the United States of
America (23 April 2014) CCPR/C/USA/CO/4 ........................................................................ 3
Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of
Opinion and Expression (16 May 2011) UN Doc A/HRC/17/27 (UNHRC May 2011
Report) ................................................................................................................................... 27
UN Economic and Social Council, UN Sub-Commission on Prevention of Discrimination and
Protection of Minorities, Siracusa Principles on the Limitation and Derogation of Provisions
in the ICCPR (1984) Annex, UN Doc E/CN 4/1984/4. ........................................................... 3
UN Special Rapporteur on Freedom of Opinion and Expression, OSCE Representative on
Freedom of the Media, OAS Special Rapporteur on Freedom of Expression and ACHPR
Special Rapporteur on Freedom of Expression and Access to Information (1 June 2011)
(Joint declaration on freedom of expression and the Internet) .......................................... 23, 25
UNESCO Internet study available at
<http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/CI/CI/pdf/Events/netconference
_march2015_submissions/B/response_from_prof_dan_jerker_b_svantesson.pdf> assessed at
18th September, 2016 ............................................................................................................... 23
UNGA Human Rights Defenders. Note by the Secretary General (18 September 2003)
A/58/380 .................................................................................................................................. 11

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UNGA Report of the Special Representative of the Secretary-General on Human Rights


Defenders (13 August 2007) A/62/225 ................................................................................... 11
UNHRC The promotion, protection and enjoyment of human rights on the
Internet(June 29, 2012) A/HRC/20/L.13 ............................................................................ 22
UNHRC The promotion, protection and enjoyment of human rights on the Internet (29 June
2012) A/HRC/20/L.13 ............................................................................................................. 22
UNHRC, Report of the Special Rapporteur on the Freedom of opinion and expression (30
September 2009) UN Doc A/HRC/12/L.14/Rev.1 ................................................................... 6
UNHRC, Report of the Special Rapporteur on the promotion and protection of the right to
freedom of opinion and expression (10 August 2011) A/66/290
<http://www.ohchr.org/Documents/Issues/Opinion/A.66.290.pdf> ....................................... 25
UNHRC, Report of the Special Rapporteur on the Promotion and Protection of the Right to
Freedom of Opinion and Expression (16 May 2011) UN Doc A/HRC/17/27 (UNHRC May
2011 Report) ............................................................................................................................ 3
UNHRC, Report of the Special Rapporteur on the Promotion and Protection of the Right to
Freedom of Opinion and Expression (22 May 2015) UN Doc A/HRC/29/32 (UNHRC May
2015 Report) ............................................................................................................................ 3
UNHRC, Report of the Special Rapporteur on the Promotion and Protection of the Right to
Freedom of Opinion and Expression Frank La Rue (16 May 2011) UN Doc A/HRC/17/27
(UNHRC May 2011 Report) .................................................................................................. 4
UNHRC, Report of the Special Rapporteur on the Promotion and Protection of the Right to
Freedom of Opinion and Expression Frank La Rue (20 April 2010) UN Doc A/HRC/14/23
(UNHRC April 2010 Report) ................................................................................................. 4

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UNHRC, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly
and of association and the Special Rapporteur on extrajudicial, summary or arbitrary
executions on the proper management of assemblies (4 February 2016) A/HRC/31/66 ........ 12
UNHRC, Report of the Special Rapporteur on the rights to freedom of peaceful assembly and
of association, Maina Kiai (21 May 2012) A/HRC/20/27 ...................................................... 14
UNHRC, Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and
of Association, Maina Kiai, ( 28 April 2015) A/HRC/26/29 p 9 ............................................ 12
UNHRC, Report of the Special Rapporteur on the rights to freedom of peaceful assembly and
of association, Maina Kiai, (24 April 2013) A/HRC/23/39 .................................................... 14
UNHRC, Report of the Special Representative of the Secretary-General on the Situation of
Human Rights Defenders, Hina Jilani (4 March 2008) A/61/312........................................... 12
UNHRC, Report of the Special Representative of the Secretary-General on the Situation of
Human Rights Defenders, Hina Jilani (4 March 2008) A/HRC/7/28/Add.3 .......................... 11
UNHRC, Rights to freedom of peaceful assembly and of association (7 August 2013) A/68/299
................................................................................................................................................. 12
UNHRC, The rights to freedom of peaceful assembly and of association (6 October 2010)
A/HRC/RES/15/21. ................................................................................................................. 14
ARTICLES FROM INTERNET
Adria Allen, Internet Jurisdiction Today, 22 Nw. J. Int'l L. & Bus. 69 (2001-2002) ................. 18
Article 19, The Johannesburg Principles on National Security, Freedom of Expression and
Access to Information (1996)
<https://www.article19.org/data/files/pdfs/standards/joburgprinciples.pdf> ............................ 3
Austen L. Parrish, Sovereignty, Not Due Process: Personal Jurisdiction over Nonresident
Alien Defendants(2006) 41(1)Wake Forest Law Review1
<http://www.repository.law.indiana.edu/facpub/884> acessed on 5th October, 2016 ............ 17

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Concluding observations on the Syrian Arab Republic (CCPR/CO/84/SYR) ........................... 23


David McGuire, Group Blasts Yahoo Nazi Ruling as Setback For Civil Liberties,
NEWSBYTES, November 11, 2000 ....................................................................................... 18
F.A. Mann, The Doctrine of International Jurisdiction Revisited After Twenty Years
Recueil des cours. t. 186 (1984) .............................................................................................. 17
H.S. Lewis, The three deaths of States Sovereignty and the curse of abstraction in the
jurisprudence of personal jurisdiction(1983) 58Notre Dame Law Review 699 ................... 17
Joe McNamee, Internet intermediaries: the new cyber police 2011, available at
<http://www.giswatch. org/en/freedom-association/internet-intermediaries-newcyberpolice>
................................................................................................................................................. 26
Keith Perine, Frontier-free Internet back behind national boundaries. Hate Foes Praise Yahoo
Move, REUTERS, Jan.3, 2001 .............................................................................................. 17
Monica Macovei, Freedom Of Expression: A Guide To The Implementation Of Article 10 Of
The European Convention On Human Rights (Council of Eur., Human Rights Handbook
Ser. No. 2, 2004), available at
<http://www.coe.int/t/dgi/publications/hrhandbooks/HRHAND02)(2004)_en.pdf > assessed
at 15 October, 2016. ................................................................................................................ 22
Monica Macovei, Freedom of Expression: A Guide to the Implementation of Article 10 of the
European Convention on Human Rights (Council of Eur., Human Rights Handbook Ser. No.
2, 2004), available at (http://www.coe.int/t/dgi/publications/hrhandbooks/HRHAND02)(
2004)_en.pdf) ............................................................................................................................ 5
Satvinder S. Juss, Nationality law, sovereignty, and the Doctrine of Exclusive Domestic
Jurisdiction (1994) 9(2)Florida Journal of International Law 219 ....................................... 17
Subcommittee on International Transactions, Transnational Issues in Cyberspace: A Project on
the Law Relating to Jurisdiction, AMERICAN BAR ASSOCIATION, available at

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<http://www.abanet.org/buslaw/cyber/initiatives/prospect.html >assessed on 15th October,


2016 ......................................................................................................................................... 18
Vera Ranieri, Canadian Court Affirms Global Takedown Order to Google (12 June 2015),
Electronic Frontier Foundation, online: https://www.eff.org/deeplinks/2015/06/canadiancourt-affirms-global-takedown-order-google accessed on 16th September 2016. ................. 15
JOINT STATEMENTS
UN Special Rapporteur on Freedom of Opinion and Expression, OSCE Representative on
Freedom of the Media and OAS Special Rapporteur on Freedom of Expression (21
December 2005) (Joint Declaration on the Internet and on Anti-Terrorist Measures) ; UN
Special Rapporteur on the Promotion and Protection the Right to Freedom of Opinion and
Expression and Inter-American Commission on Human Rights Special Rapporteur for
Freedom of Expression (21 December 2010) (Joint Statement On Wikileaks)....................... 4
UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on
Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression (28
December 2005) (Joint Declaration for promoting freedom of expression) ........................... 16
UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on
Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression (30
November 2000) (Joint Declaration on the Current Challenges to Media Freedom); UN
Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on
Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression (9-10
December 2002) Joint Declaration. ........................................................................................... 7
United Nations (UN) Special Rapporteur on Freedom of Opinion and Expression, Organization
for Security and Co-operation in Europe (OSCE) Representative on Freedom of the Media,
Organization of American States (OAS) Special Rapporteur on Freedom of Expression and
African Commission on Human and Peoples Rights (ACHPR) Special Rapporteur on

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Freedom of Expression and Access to Information (1 June 2011) (Joint Declaration on


Freedom of Expression and the Internet) .................................................................................. 4
DECLARATIONS, TREATIES, AND CONVENTIONS
European Convention on Human Rights adopted 4 November 1950, entered into force (3
September 1953) 213 UNTS 1932 .......................................................................................... 22
IACHR DOCUMENTS
IACHR Compulsory Membership in an Association Prescribed by Law for the Practice of
Journalism (Arts. 13 and 29 American Convention on Human Rights) (IACtHR, 13
November 1985) Opinion OC-5/85 (Ser. A) No. 5 (1985) ..................................................... 22
IACHR, Freedom of Expression and the Internet (31 December, 2013) OEA/Ser.L/V/II
CIDH/RELE/INF.11/13
<http://www.oas.org/en/iachr/expression/docs/reports/2014_04_08_Internet_ENG%20_WE
B.pdf>...................................................................................................................................... 25
IACHR, Report on the Compatibility of "Desacato" Laws with the American Convention on
Human Rights (17 February 1995) OEA/Ser. L/V/II. 88, doc. 9 rev. ..................................... 7
IACHR, Annual Report of the Office of the Special Rapporteur for Freedom of Expression.
Chapter III (Inter-American Legal Framework of the Right to Freedom of Expression) (30
December, 2009) Annual Report 2009 OEA/Ser.L/V/II. Doc. 51 .......................................... 22
IACHR, Annual Report of the Office of the Special Rapporteur for Freedom of
Expression.Chapter III (Inter-American Legal Framework of the Right to Freedom of
Expression) (30 December 2009) Annual Report 2009 OEA/Ser.L/V/II. Doc. 51 ................ 22
IACHR, Report on the situation of human rights defenders in the Americas, (7 March 2006)
OEA/Ser.L/V/II.124, Doc. 5 rev.1 .......................................................................................... 13
BOOKS

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Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd rev. ed.
Kehl am Rhein, Engel, 2005) p. 487. ...................................................................................... 14
EU DOCUMENTS
European Parliament and council Commerce Directive, 2000/31/EC (8 June 2000) .............. 16
See Media Law Resource Centers Comments to the European Commission,
<http://www.europa.eu.int/comm/justice_home/unit/civil/consultation/contributions/mlrc_en.
pdf> accessed on 7 September 2016 ....................................................................................... 16

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STATEMENT OF RELEVANT FACTS


Unstable Political History of Amostra

State of Amostra is a socially and politically unstable country with the religious sect Zasa in
majority (70% population) and Yona sect being in minority (30% population). Amostra has
experienced increased social unrest in the past five years, as Yona religious minority maintain that
the primarily Zasa-led government has subjected it to various forms of political and economic
discrimination. There have been frequent non-violent protests and occasional skirmishes between
that have resulted in arrests of protestors primarily from the Yona sect.

On February 15, 2016 violence erupted during a protest outside Parliament and during the
clash, a Yona protestor was killed by a blow to the head, possibly from police forces or a small
group of Zasa counter-protestors. This led to months of continued protests. Resultantly, on June
6, 2016, Prime Minister of Amostra announced that general elections would be held in 60 days,
on August 5.
Enactment of Election Safety Act of 2016 (ESA)

In the wake of Elections, the National Election Authority enacted the Election Safety Act
(ESA) with the purpose of restricting election-related speech whereby political
demonstrations to spread an extremist or seditious message were not permitted within 30 days
of elections.
Enactment of the Stability and Integrity Act of 2014 (ESA)

Previously in 2014, after a protest outside of Parliament led to significant destruction of


government property and a series of threats against the lives of the Prime Minister and leading
officials, the government of Amostra enacted stringent laws prohibiting certain criminal

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offences terming them as extremist or anti-patriotic statements. This enactment also provides
for media censorship by mandating all media organisations to register with the Ministry of
Defense and discuss with the Ministry the type of content they intend to publish.

SeeSay and Its Presence in Amostra

SeeSey, a Sarranto based social media platform is available to the citizens of Amostra where
the users can post content and also share or comment on posts they see. SeeSey ranks as the
most popular source of news and political discussion, and users regularly share and comment
on media content on the platform. SeeSay is accessible worldwide, including in Amostra,
which has many SeeSey users, though these users only make up a small fraction of SeeSeys
worldwide users.
SeeSey has the technical ability to block individual posts in individual countries. For instance,
it could make a post invisible in Amostra but visible in the rest of the world.
SeeSey has its headquarters and hosts all worldwide data on servers in Sarranto, a politically
stable country located more than 1000 miles from Amostra. Sarranto also has a large immigrant
population from a number of countries, including Amostra.
SeeSey owns a subsidiary company, SeeSALES, which is headquartered and has its sole office
in Amostra. SeeSALES is independently operated in Amostra. SeeSey has many such
subsidiaries around the world, and does not provide any of them access to the data stored on
SeeSey servers.
Ms. Blenna Ballayas Column in The Times
Ms. Blenna Ballaya, a famous blogger and an insightful and bold writer of the political matters
of the State, is a citizen of Amostra residing in Sarranto. She wrote an article for the ExAmostra Times (The Times), a Sarranto based newspaper which was published in print and

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also posted on the website of The Times as well as on the SeeSey Account of The Times on
July 7, 2016. It has been alleged that the column (An Open Letter to the Oppressors) accuses
the Prime Minister and other members of the Zasa sect of corruption and human rights
violations against Yona people, and allegedly calls the August election a sham for Zasa
political gain. The column concluded by calling other anti-government Amostrans for an active
but peaceful Day of Resistance on August 1.

On the Day of Resistance, a minority of the Yona sect demonstrators led an arson attack,
chanting hard-line political messages, setting fire to a Zasa religious building. There was no
evidence that the attackers had read Ballays column.
Amostras Conviction of Ms. Ballaya and Order against SeeSay

Following the riots and violence, Ballaya was arrested and prosecuted under Sections A & B of
the SIA and Section 3 of the ESA. SeeSey was also directed to take down the offensive content
worldwide and post an apology. This was upheld by the Amostras Supreme Court. Now the
matter is before the Universal Freedom of Speech Court.

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STATEMENT OF JURISDICTION
The Universal Court of Human Rights substitutes all jurisdictions of all other regional courts
and becomes the final adjudicator when all national remedies have been exhausted. In the
present case, an ad hoc Chamber of the Universal Court of Human Rights has been established
in order to deal with issues specifically addressing cases concerning Freedom of Expression as
set out in Article 19 of the UDHR. The Chamber is known as the Universal Freedom of
Expression Court.
Both the parties to the dispute have accepted the jurisdiction of the Court and the matter is now
listed for final hearing upon the questions set by the ad hoc chamber. Ballaya and SeeSey
hereby request this Honorable Court to issue a judgment in accordance with all relevant
international law including the Universal Declaration of Human Rights, conventions,
jurisprudence of relevant courts, and principles of international law.

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QUESTIONS RAISED

A. Whether Amostras prosecution of Ballaya under the SIA violates international principles,
including Article 19 of Universal Declaration of Human Rights (UDHR) and Article 19 of
the International Covenant on Civil and Political Rights (ICCPR).
B. Whether Amostras prosecution of Ballaya under the ESA violates international principles,
including Article 19 UDHR and Article 19 of the ICCPR.
C. Whether Amostra has jurisdiction to obtain and enforce the civil order against SeeSey in
Amostra and Sarranto.
D. Whether Amostras civil order against SeeSay violates international principles, including
Article 19 of UDHR and Article 19 of the ICCPR.

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SUMMARY OF ARGUMENTS
A. Prosecution of Ms. Ballaya puts excessive restriction upon her universal freedom of
expression. Although freedom of expression is not absolute, it is wide enough to include
controversial, disturbing or even shocking material; the mere fact that an idea is disliked or
thought to be incorrect cannot justify preventing a person from expressing it. The SIA has
convicted Applicant-1 for her fair criticism against the public officials.
The prosecution cannot be held valid in the light of the Three-part test, because, firstly, the
prosecution is not prescribed by precise law which never allowed Applicant-1 to regulate
her conduct and it gives unfettered power to the MoD amounting to prior censorship and
where free communication of information and ideas about public and political issues is
essential, a means of silencing the political criticism.
Secondly, there is no legitimate aim suppressing political dissent where it has been provided
that restrictions should never be imposed upon political debate, reporting on government
activities, especially during elections. Applicant-1 has exercised her right to freedom of
speech, which ultimately encompasses political speech as well as speech related to
government criticism; by making a public opinion had criticized the Amostran government.
Thirdly, the prosecution is not necessary since the offences have already been prescribed
under the penal code of the state and because the ambit of criticism of public officials is
wider. It has been established that there should be greater latitude in criticizing a public
official, even to the extent of mistaken or inaccurate statements, provided that these were
not made maliciously. Thus, the prosecution is not valid.
B. Although enumerated in separate articles of the UDHR, Art 19 and 20, freedom of opinion,
expression, assembly, and association (collectively, expression rights) are linked. Right
to freedom of assembly is an inextricable right in a democracy and it must be protected at
all times, particularly when persons protesting hold unpopular or controversial views, or

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belong to minorities or other groups exposed to higher risks of victimization. Applicant-1


has been convicted under Section 1 and Section 3 of the ESA for organizing the protest.
Applying the Three-part test, prosecution cannot be justified because, firstly, the
prosecution is not provided by the law. The National Election Authority, having no basis in
any legislation, is a non-independent government appointed regulatory body. It has no legal
authority.
Secondly, the prosecution curbs the aim to organize and participate in peaceful protest. The
right to freedom of peaceful assembly should be enjoyed by everyone. Political and social
participation through public demonstration is critical to the consolidation of democratic life
in societies. A restriction, in the guise of political interest, cannot be imposed on the ground
of public order.
Thirdly, the prosecution is not necessary and proportionate. A threat to public order is the
most frequently cited reason for prohibiting or imposing broad restrictions on assemblies,
but, the focus should be on the stated intentions of the organizers rather than the mere
possibility of disorder. Since the peaceful intention of the organizer is not undermined by
the possibility that an assembly might provoke opposition among some sectors of society.
C. The civil court of Amostra does not have the jurisdiction either to obtain or enforce the civil
order against Seesay. In cases of overlapping jurisdictions, the use of rule of reason may
seem essential, which implies that a court should claim the jurisdiction of a case only after
reasonably considering the interests of different nations involved and duly complying with
the international laws.
In pursuance of the principle of political sovereignty, the laws of another country cannot be
enforced beyond its territory except as provided by the comity of the nations to recognize
the judicial, legislative or executive acts of other country in their own territory. The courts
should refrain from passing any order with extra-territorial effect.

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Imposing traditional jurisdictional principles on internet can lead to serious repercussions of


self policing of the content by private companies and internet being hampered by the laws
of the least tolerant nations.
The objective behind global takedown order is to eliminate the alleged offensive effect on
SeeSay. The column has been published, its effect has already occurred, thus, theres no
subsisting effect which can be derived from it.
The Amostran courts do not have the jurisdiction to get the civil order passed or enforced
by the courts of Sarranto because as a general rule states are not entitled to get their orders
enforced in another country except by virtue of any internationally followed custom or
treaty, or by determining the enforcement of foreign judgments in their own territories.
Thus, a court can refuse to enforce the foreign judgment in cases when it jeopardises its
sovereign interests, is against the rights of its residents, lacks jurisdictional competence to
the order the same or is against the international laws in force. The order of global removal
is impermissibly restricting the universal freedom of speech and expression globally.
D. Amostras civil order against Applicant-2 violates international principles relating to
freedom of expression by curtailing Seesays protected right to disseminate information and
the sacrosanct right to information of not only the people within Amostra, but, also
worldwide.
Universal freedom of speech is broad enough to protect all forms of expressions and the
means of their dissemination, including internet based modes enabling global expression.
Even the speech which is considered critical and controversial to offend the majority of
public is also covered under its ambit. In this way, media enjoys a wider level of acceptable
criticism on political issues, which must only be limited when public interest outweighs the
freedom of expression, supported by strong and unavoidable reasons.

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The State is under an obligation to not only interfere with the free flow of communication
but also to effectively protect the freedom of media, however, sometimes it tries to impose
arbitrary and unreasonable restrictions by applying legal regimes to protect their political
interests in the name of pressing needs of social and public interest.
Further, a hyperlinker (disseminator) cannot be held liable for the illegal content of
hyperlinked pages (other parties) by virtue of the mere conduit principle since an act of
mere dissemination cannot be understood as approval.
Not only does the media enjoy right to freedom of expression, the public too has the right to
information to such expression, even during sensitive times of political unrest.
The restrictions imposed on the freedom of speech must be construed narrowly and the
punishment imposed must pass the test of proportionality. Only the least possible restriction
should be chosen, keeping in mind the public interest in protecting the universal freedom of
expression

of

people

and

the

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ARGUMENTS
Freedom of expression is a fundamental right in a democratic society1 which encompasses
means of political, cultural or artistic expression.2 Healthy democracy requires exposure of
the executive to internal scrutiny not just by legislative and judicial authorities, but by the
public.3 The right to freedom of expression also extends to controversial, disturbing or even
shocking material.4

A.

WHETHER OR NOT AMOSTRAS PROSECUTION OF BALLAYA UNDER THE


SIA VIOLATES INTERNATIONAL PRINCIPLES, INCLUDING ARTICLE 19 OF
UDHR AND ARTICLE 19 OF ICCPR?

[ 1]

It is most humbly submitted that Amostras prosecution of Applicant-1, Ms. Ballaya

under the Stability and Integrity Act of 2014 (SIA) violates the international principles,
including Article 19 of UDHR and ICCPR. The Applicant-1 has been convicted under s A
and s B of the SIA for accusing the Prime Minister and other members of the Zasa sect of
corruption and human rights violations against Yona people, and allegedly calls the August
election a sham for Zasa political gain5 in her column, An Open Letter to the Oppressors,
which was published in the newspaper and on the website as well as on the SeeSey account
of The Times on July 7, 2016.
1

Marques de Marques v. Angola, UN Doc CCPR/C/83/D/1128/2002 (HRC, 29 March 2005); Claude-Reyes et


al. v. Chile (IACtHR, 19 September 2006) Para. 85; Herrera-Ulloa v. Costa Rica (IACtHR, 2 July 2004) Para.
112; Ricardo Canese v. Paraguay, (IACtHR, 31 August 2004) Para. 82; Ros et al. v. Venezuela (IACtHR 28
January 2009) Para. 105; Perozo et al. v. Venezuela (IACtHR 28 January 2009) Para. 116.
2

Ballantyne, Davidson, McIntyre v. Canada, U.N. Doc. CCPR/C/47/D/359/1989 and 385/1989/Rev.1 (HRC, 5
May 1993) Annex para 11.3.
3

ener v. Turkey, App No. 26680/95 (ECtHR, 18 July 2000) (ener) para 40.

Handyside v. the United Kingdom, App No. 5493/72 (ECtHR, 7 December 1976) (Handyside); Giniewski v.
France, Application No 64016/00 (ECtHR, 31 January 2006) (Giniewski) para 43.
5

Competition Case, 18.

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[ 2]

It is submitted that prosecution of Ms. Ballaya puts excessive restriction upon her

Universal Freedom of Expression. A restriction to be reasonable must satisfy the Three-part


Test6:
1)

That the prosecution was not provided by law.

2)

That the prosecution pursued a legitimate aim

3)

That the prosecution was necessary

1) That the prosecution was not provided by law. 7


[ 3]

The first requirement is fulfilled only where the law is accessible and formulated with

sufficient precision8 to enable the citizen to regulate his conduct.


[ 4]

There must be adequate formal controls which provide effective mechanisms to

safeguard against arbitrary9 targeting. This unfettered power of censorship of content with

HRC, General Comment 34 (12 September 2011) UN Doc CCPR/C/GC/34 (General Comment 34) para 22;
UNHRC, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of
Opinion and Expression (16 May 2011) UN Doc A/HRC/17/27 (UNHRC May 2011 Report) para. 24;
UNHRC, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of
Opinion and Expression (22 May 2015) UN Doc A/HRC/29/32 (UNHRC May 2015 Report); Velichkin v.
Belarus, UN Doc CCPR/C/85/D/1022/2001 (HRC, 20 October 2005); Refah Partisi (The Welfare Party) and
Others v. Turkey, App Nos. 41340/98, 41342/98, 41343/98 and 41344/98 (ECtHR, 13 February 2003) para. 5085; The Sunday Times v. United Kingdom, App no 6538/74 (ECtHR, 26 April 1979) (Sunday Times) para. 45;
Mukong v. Cameroon UN Doc CCPR/C/51/D/458/1991 (HRC, 10 August 1994) para. 9.7; Article 19, The
Johannesburg Principles on National Security, Freedom of Expression and Access to Information (1996)
<https://www.article19.org/data/files/pdfs/standards/joburgprinciples.pdf> accessed 17 October 2016. See also
UN Economic and Social Council, UN Sub-Commission on Prevention of Discrimination and Protection of
Minorities, Siracusa Principles on the Limitation and Derogation of Provisions in the ICCPR (1984) Annex,
UN Doc E/CN 4/1984/4.
7

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 8590; Malone v. UK App no 8691/79 (ECtHR, 2 August 1984) (Malone) paras 6768;
Weber and Saravia v. Germany App no 54934/00 (ECtHR, 29 June 2006) (Weber) para 23; Editorial Board of
Pravoye Delo and Shtekel v. Ukraine App no 33014/05 (ECtHR, 5 August 2011) (Editorial Board) para 51;
Ahmet Yldrm v. Turkey App no 3111/10 (ECtHR, 18 December 2012) (Ahmet) paras 5759; Robert W
Gauthier v. Canada UN Doc CCPR/C/65/D/633/1995 (HRC, 7 April 1999); Dissanayake v. Sri Lanka UN Doc
CCPR/C/93/D/1373/2005 (HRC, 4 August 2008); Viktor Korneenko et al. v. Belarus UN Doc
CCPR/C/88/D/1274/2004 (HRC, 10 November 2006); Monja Jaona v. Madagascar UN Doc Supp No. 40
(A/40/40) at 179 (1985) (HRC, 6 April 1984); Also see HRC, General Comment 32 (23 August 2007) UN Doc
CCPR/C/GC/32 (General Comment 32) para 29; ICCPR, Concluding Observations on the Fourth Periodic
Report of the United States of America (23 April 2014) CCPR/C/USA/CO/4 para 22.
8

Leonardus Johannes Maria de Groot v. The Netherlands U.N. Doc. CCPR/C/54/D/578/1994 (HRC, 24 July
1995).

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the MoD of the Amostran government is violative of Chapter III, as the specific conditions
that justify blocking are not established by law, which risks content being blocked
arbitrarily and excessively.10
[ 5]

In the present case, the imposition of condition of scrutiny by the MoD cannot be

considered to be reasonable ICCPR as it is an attempt by the State machinery to control


media and is nothing short of pre-censorship. Laws must not be used as a means of
political censorship or silencing criticism of public officials.11
[ 6]

Mandatory blocking of entire websites is an extreme measure. Content filtering systems

which are imposed by a government and which are not end-user controlled are a form of
prior censorship and are not justifiable as a restriction on freedom of expression.12
[ 7]

Free communication of information and ideas about public and political issues is

essential. This implies a free press and other media able to comment on public issues and to

Leander v. Sweden App no. 9248/81 (ECtHR, 26 March1987) para51; Malone v. The United Kingdom App no.
8691/79 (EtCHR, 2 August 1984); Kruslin v. France App No 11801/85 (EtCHR, 24 April 1990); Klass and
others v. Germany App No. 5029/71 (EtCHR, 6 September 1978); Kopp v. Switzerland App No. 23224/94
(EtCHR, 25 March 1998); Halford v. The United Kingdom App No. 20605/92 (EtCHR, 25 June 1997);
Vereinigung Demokratischer Soldaten sterreichs and Gubi v. Austria App No. 15153/89 (EtCHR, 19
December 1994) para 29; Calogevo Diana v. Italy Appl. No. 15211/89, (EtCHR, 15 November 1996) para 3233; Domenichini v. Italy Appl. No. 15943/90 (EtCHR, 15 November 1996).
10

UNHRC, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of
Opinion and Expression Frank La Rue (16 May 2011) UN Doc A/HRC/17/27 (UNHRC May 2011 Report)
paras 26, 28; Centro Europa 7 S.r.l. and Di Stefano v. Italy App. no. 38433/09 (EtCHR, 7 June 2016).
11

UNHRC, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of
Opinion and Expression Frank La Rue (20 April 2010) UN Doc A/HRC/14/23 (UNHRC April 2010 Report)
paras 79.
12

United Nations (UN) Special Rapporteur on Freedom of Opinion and Expression, Organization for Security
and Co-operation in Europe (OSCE) Representative on Freedom of the Media, Organization of American States
(OAS) Special Rapporteur on Freedom of Expression and African Commission on Human and Peoples Rights
(ACHPR) Special Rapporteur on Freedom of Expression and Access to Information (1 June 2011) (Joint
Declaration on Freedom of Expression and the Internet) Point 3 (b); UN Special Rapporteur on Freedom of
Opinion and Expression, OSCE Representative on Freedom of the Media and OAS Special Rapporteur on
Freedom of Expression (21 December 2005) (Joint Declaration on the Internet and on Anti-Terrorist Measures)
; UN Special Rapporteur on the Promotion and Protection the Right to Freedom of Opinion and Expression and
Inter-American Commission on Human Rights Special Rapporteur for Freedom of Expression (21 December
2010) (Joint Statement On Wikileaks) Point 5.

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form public opinion without censorship or restraint. 13 Filtration or blocking should be


designed and applied so as to exclusively impact the illegal content without affecting other
content.14
2)
[ 8]

Restriction(s) did not pursue any Legitimate Aim15:


Ms. Ballaya, exercising her right to freedom of speech, had criticized16 the Amostran

government officials. Freedom of expression is protected under Article 19, UDHR and
ICCPR, which ultimately encompasses political speech as well as speech related to
government criticism 17 and courts have stressed the importance of protecting freedom of
expression.18
[ 9]

Freedom of Speech and Expression is indispensable for the formation of public opinion.

It represents the means that enable the community, when exercising its opinions, to be
sufficiently informed. Consequently, it can be said that a society that is not well informed is
not a society that is truly free.19

13

HRC, General Comment 25: Article 25 (Participation in Public Affairs and the Right to Vote), The Right to
Participate in Public Affairs, Voting Rights and the Right of Equal Access to Public Service (12 September
2011) UN Doc CCPR/C/21/Rev.1/Add.7 para. 25.
14

UNHRC May 2011 Report (n 12) Para. 25, 26 and 32. Available for consultation at:
http://ap.ohchr.org/documents/dpage_e.aspx?m=85.
15

Toonen v. Australia, U.N. Doc CCPR/C/50/D/488/1992 (HRC, 31 March 1994).

16

Janowski v. Poland, App No. 25716/94 (EtHRC, 21 January 1999); Nikula v. Finland, App no. 31611/96
(EtHRC, 21 March 2002).
17

Monica Macovei, Freedom of Expression: A Guide to the Implementation of Article 10 of the European
Convention on Human Rights (Council of Eur., Human Rights Handbook Ser. No. 2, 2004), available at
(http://www.coe.int/t/dgi/publications/hrhandbooks/HRHAND02)( 2004)_en.pdf).
18

Lindon v. France App No. 21279/02 (EtHRC, 22 October, 2007) para 183, 211; Maronek v. Slovakia App
No. 32686/96 (EtHRC, 19 April, 2001) para 337, 349; Thoma v. Luxembourg App. No. 38432/97(EtHRC, 29
March, 2001) para 67, 84; Lingens v. Austria App. No. 9815/82 (EtHRC, 8 July, 1986) para 11, 26; Handyside
v. United Kingdom App. No. 5493/72 (EtHRC, 7 December, 1976) para 23.
19

Ivcher Bronstein v. Peru (IACtHR, 6 Feburary, 2001) para 149. Report on The Situation of Human Rights
Defenders In the America ( 7 March, 2006) SOEA/Ser.L/V/II.124, Doc. 5 rev.1 para. 79.

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[ 10] It is humbly submitted that the column written by Applicant-1 is within the purview of
disseminating information of public interest. The international community is aware of the
political as well as the social unrest prevailing in Amostra and it is in public interest that
people are made aware about the human rights violations of the minorities in the country.
[ 11] The landmark case of New York Times v. Sullivan20 established the principle that there
should be greater latitude in criticizing a public official, even to the extent of mistaken or
inaccurate statements, provided that these were not made maliciously.
[ 12] That freedom thus enables, in a context of political opposition, to use virulent critical
remarks about political leaders concerning a matter of general interest and any written or
verbal exaggeration concerning that subject can be tolerated.21
[ 13] The Human Rights Council has stated in its resolution 12/16, restrictions should never
be applied, inter alia, to discussion of Government policies and political debate; reporting on
human rights, Government activities and corruption in Government; engaging in election
campaigns, peaceful demonstrations or political activities, including for peace or democracy;
and expression of opinion and dissent, religion or belief, including by persons belonging to
minorities or vulnerable groups.22 The same has been echoed by the HR Committee too23 and
by the Inter-American Commission on Human Rights (IACHR).24

20

New York Times Co. v. Sullivan (1964) 376 U.S. 254.

21

Renaud v. France Comm. No. 13290/07 (EtHRC, 25 Feburary 2010) para 149; Mouvement Raelien Suisse v.
Switzerland App no.16354/06, (EtHRC, 13 July 2012) para 61.
22

UNHRC, Report of the Special Rapporteur on the Freedom of opinion and expression (30 September 2009)
UN Doc A/HRC/12/L.14/Rev.1, para. 5(p); UN Special Rapporteur on Freedom of Opinion and Expression,
the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of
Expression (30 November 2000) (Joint Declaration on the Current Challenges to Media Freedom); UN Special
Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the
OAS Special Rapporteur on Freedom of Expression (9-10 December 2002) Joint Declaration.
23

Morais v. Angola Comm No. 1128/2002 (HRC, 18 April 2005), para. 6.8.

24

IACHR, Report on the Compatibility of "Desacato" Laws with the American Convention on Human Rights
(17 February 1995) OEA/Ser. L/V/II. 88, doc. 9 rev., , p. 209; See also Mpaka-Nsusu v. Zaire Comm No.
157/1983 (HRC, 26 March 1986); Mika Miha v. Equatorial Guinea U.N. Doc. CCPR/C/51/D/414/1990 Comm

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3)

Restriction(s) must pursue the principle of Necessity25 and Proportionality to


secure a Legitimate Aim:

[ 14] The aim behind enacting SIA was to prohibit extremist and anti-patriotic statements.26
Since Section A of SIA mentions certain offences which have not been defined under the act,
it can easily be said that these offences already have a place in other municipal laws. Thus,
the restriction imposed by means of enacting such an act which includes pre-existing offences
cannot be said to be necessary to secure the aims of the enactment.
[ 15] The authorities must not deter journalists from contributing to public discussion of
issues affecting the life of the community27. The harassment, intimidation or stigmatization
of a person, including arrest, detention, trial or imprisonment for reasons of the opinions they
may hold, constitutes a violation of Article 1928. It includes political discourse,29 commentary
on ones own 30 and on public affairs, 31 canvassing, 32 discussion of human rights, 33
journalism.34

No. 414/1990 (HRC, 8 July 1994) ; (Herrera Ulloa v. Costa Rica IACtHR, 2 July 2004)Series C No 107;
Ricardo Canese v. Paraguay (IACtHR, 31 August 2004) Series C No 111; Palamara Iribarne v. Chile
(IACtHR, 22 November 2004) Series C No 135; Kimel v. Argentina (IACtHR, 2 May 2008) Series C No 177.
25

Ross v. Canada Comm No. 736/1997 (HRC, 17 July 2006); Ballantyne, Davidson, McIntyre v. Canada
Comm No. 359/1989 and 385/1989. (HRC, 31 March 1993)
26

Competition Case, 10.

27

Lingens v. Austria App no. 9815/82.(ECtHR, 8 July 1986) Series A no. 103, para 44

28

Mpaka-Nsusu v. Zaire Comm No. 157/1983 (HRC, 26 March 1986), Mika Miha v. Equatorial Guinea Comm
No. 414/1990 (HRC, 8 July 1994); Belpietro v. Italy App no. 43612/10 (ECtHR,24 September 2013) para 61
29

See, Mika Miha v. Equatorial Guinea Comm No. 414/1990 (HRC, 8 July 1994).

30

Fernando v. Sri Lanka, Comm No. 1189/2003 (HRC, 31 March 2005)

31

Patrick Coleman v. Australia, Comm No. 1157/2003 (HRC,17 July 2006)

32

Concluding observations on Japan (CCPR/C/JPN/CO/5).

33

Mr. Vladimir Velichkin v. Belarus, Comm No. 1022/2001 (HRC, 20 October 2005)

34

Rakim Mavlonov and Mr. Shansiy Sadi v. Uzbekistan, Comm No. 1334/2004 (HRC,19 March 2009)

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[ 16] It is an accepted principle that politicians and public figures in the political arena face
greater limits of acceptable criticism35, that the politicians running for office have a reduced
expectation of privacy, as the protection of their reputation may be outweighed by public
interest in discussing political issues36 has been explicitly reiterated many times in the Court's
jurisprudence. In particular, in Otegi Mondragon v. Spain 37 , the Court held that the
institutional position of the King should not shield him from all criticism in the exercise of
his official duties or in his capacity as representative of the State which he symbolises from
persons who challenge in a legitimate manner the constitutional structures of the State.38
[ 17] The ECHR first emphasized freedom of expression as fundamental for a democratic
society and described its applicability to both favorable information and ideas, and also to
those that offend, shock or disturb. 39 All public figures, including those exercising the
highest political authority such as heads of state and government, are legitimately subject to
criticism and political opposition.40
[ 18] The ECtHR found that the journalists publication did not exceed the acceptable limits
of criticism and the imposed criminal conviction was not compatible with the principles set
out in Article 10.41

35

Eon v. France App No 26118/10 (ECtHR, 14 March 2013) para 58; Vides Aizsardzbas Klubs v. Latvia,
Application No 57829/00 (ECtHR, 27 May 2004) para 40; Lingens v. Austria, judgment of 8 July 1986,
Application No 9815/82, para 42; Colombani and Others v. France App No. 51279/99 (EctHR, 25 June 2002).
36

Lingens v. Austria 103 Eur. Ct. H.R. (ser. A) at 26 (1986). See, Handyside v. United Kingdom App no.
5493/72 (ECtHR, 7 December 1976) para. 49.
37

Otegi Mondragon v. Spain, App No. 2034/07 (ECtHR, 15 March 2011) para 50.

38

Otegi Mondragon v. Spain, App No. 2034/07 (ECtHR, 15 March 2011) para 56; Colombani and Others v.
France App no. 51279/99 (ECtHR 25 June 2002) .
39

Grinberg v. Russia, App No. 23472/03, (ECtHR, 21 July 2005) para 5,6.

40

Marques v. Angola Comm No. 1128/2002 (ECtHR, 29 March 2005); Mr. Zeljko Bodrozic v. Serbia and
Montenegro Comm No. 1180/2003 (HRC, 31 October 2005)
41

Krasulya v. Russia App No. 12365/03 (ECtHR, 22 February 2007) para 10.

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[ 19] The States parties are required to exercise caution to ensure that provisions related to
national security are designed and applied in a way that they guarantee freedom of opinion
and expression.42 In the present case, the necessity of the restriction cannot be said to have
been secured and, hence, it cannot be said to be a legitimate and a reasonable restriction.

42

CCPR/C/GC/34 on Article 19, para. 31.

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B. WHETHER OR NOT AMOSTRAS PROSECUTION OF BALLAYA UNDER THE ESA


VIOLATES INTERNATIONAL PRINCIPLES, INCLUDING ARTICLE 19 UDHR AND

ARTICLE 19 OF THE ICCPR?


[ 20] It is most humbly submitted that Amostras prosecution of Applicant-1 under the
Election Safety Act of 2016 (ESA) violates the international principles, including Article
19 of UDHR and Article 19 of the ICCPR. The Applicant-1, Ms. Ballaya has been convicted
under Section 1 and Section 3 of the ESA for organizing the protest.
[ 21] Applicant-1 submits that the contentious newspaper column is a product of Applicant-1
as an opinion contributor,43 in which she merely makes her observation of the elections
being a sham and highlights the human rights violations against the people of the Yona sect
are being subjected to. Her call for a peaceful Day of Resistance on August 144 is nothing,
but, a means to garner support for her cause of discrimination against the minority sect of
Amostra, when political history of the State itself testifies her assertion.
[ 22] Although enumerated in separate articles of the UDHR (Articles 19 45 and 20 46 ),
freedom of opinion, expression, assembly, and association (collectively, expression
rights) are inextricably linked. Expression rights are both essential for good government
and central for the dignity of every individual. They are accordingly the hallmark of a free
and open society. Article 19 is interpreted to protect the freedom of opinion absolutely,
whereas subsequent treaties allow certain limitations to freedom of expression and

43

Competition Case, 16.

44

Competition Case, 18.

45

Art. 19, UDHR, ICCPR (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171.

46

Art. 20, UDHR, ICCPR (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171.

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assembly, prominent being the restriction of hate speech inciting violence against particular
groups.
[ 23] The right to freedom of expression implies that it should be possible to scrutinise,
openly debate, and criticise, even harshly and unreasonably, belief systems, opinions, and
institutions, including religious ones. International principles as well as the Declaration on
Human Rights Defenders acknowledge the legitimacy of participation in peaceful activities
to protest against violations of human rights, and recognize freedom of assembly as a very
important element of this right.47
[ 24] The State have negative obligation, not to interfere with peaceful protests and a positive
obligation to protect rights holders in the exercise of this right, particularly when persons
protesting hold unpopular or controversial views, or belong to minorities or other groups
exposed to higher risks of victimization, attacks and other forms of intolerance.48
[ 25] It is submitted that prosecution of Ms. Ballaya puts excessive restriction upon her
Universal Freedom of Expression. A restriction to be reasonable must satisfy the Three-part
Test: 1) Provided by law, 2) Does not pursue a legitimate aim, 3) Necessary and legitimate.
1) That the prosecution was not provided by law:
[ 26] Applicant-1 submits that the constitution of the National Election Authority has no
basis in any legislation. It is a non-independent body, wherein a group of government
appointed regulators is responsible for holding Amostras historic elections of August 5.
It is merely a regulatory body having no legal authority.
47

UNHRC, Report of the Special Representative of the Secretary-General on the Situation of Human Rights
Defenders,
Hina
Jilani
(4
March
2008)
A/HRC/7/28/Add.3
para.
76,
available
at:
http://www.refworld.org/docid/47e1183b2.html [accessed 21 October 2016]; UNGA Report of the Special
Representative of the Secretary-General on Human Rights Defenders (13 August 2007) A/62/225 para. 96 and
UNGA Human Rights Defenders. Note by the Secretary General (18 September 2003) A/58/380 para. 24.
Available at: http://ap.ohchr.org/documents/alldocs.aspx?doc_id=5800A/58/380. Report on Human rights
defenders.
48

UNGA Report of the Special Representative of the Secretary-General on Human Rights Defenders (13
August 2007) A/62/225 para 97.

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2) Restriction(s) do not pursue a Legitimate Aim:


[ 27] International principles provide a right of assembly to Applicant-1. States have an
obligation to respect and fully protect the rights of all individuals to assemble peacefully
and associate freely, online as well as offline, including in the context of elections, and
including persons espousing minority or dissenting views or beliefs, human rights
defenders., seeking to exercise or to promote those rights.49
[ 28] The right to freedom of peaceful assembly, that is, to both organize and participate in
indoor and outdoor peaceful assemblies, has long proven to be a key one in the context of
elections. 50 When States begin to criminalize the participation in and organization of
peaceful assemblies during election time, it becomes a matter of concern,51 it is considered
as a prior restriction. 52
[ 29] Assemblies can be organized by individual defenders seeking to raise an issue for
debate or protesting against human rights violations of different kinds.53
[ 30] In the course of the demonstration, public buildings were defaced and organizers were
held liable. The European Court found that there was, in this instance, an interference with
the exercise of the applicants freedom of peaceful assembly. 54

49

See Article 21 UDHR; Office for Democratic Institutions and Human Rights (ODIHR) of the Organization
for Security and Cooperation in Europe(OSCE), Guidelines on Freedom of Peaceful Assembly (2nd edition,
2010), para. 2.5; Primov and Others v. Russia Application no. 17391/06 (ECtHR, 12 June 2014); UNHRC,
Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, Maina
Kiai, ( 28 April 2015) A/HRC/26/29 p 9, para 22.
50

UNHRC, Rights to freedom of peaceful assembly and of association (7 August 2013) A/68/299; UNHRC,
Report of the Special Representative of the Secretary-General on the Situation of Human Rights Defenders,
Hina Jilani (4 March 2008) A/61/312 para. 31; Resolutions 15/21, 21/16 and 24/5, Human Rights Council;
UNHRC, Rights to freedom of peaceful assembly and of association (7 August 2013) A/68/299.
51

Id.

52

UNHRC, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of
association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper
management of assemblies (4 February 2016) A/HRC/31/66, para 19.
53

UNHRC, Report of the Special Representative of the Secretary-General on the Situation of Human Rights
Defenders, Hina Jilani (4 March 2008) A/61/312 para. 31.

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[ 31] The state of Amostra has unreasonably restricted the fundamental right of assembly of
Applicant-1. When a State invokes national security and protection of public order to
restrict an assembly, it must prove the precise nature of the threat and the specific risks
posed.55
[ 32] Political and social participation through public demonstration is critical to the
consolidation of democratic life in societies. 56 Participation in the protest of August 1 by
Applicant-1 is legitimate and fundamental to her political and social life.
[ 33] Threat to the democratic order as a rule, the Court will declare inadmissible, on grounds
of incompatibility with the values of the Convention, applications which are inspired by
totalitarian doctrine or which express ideas that represent a threat to the democratic order
and are liable to lead to the restoration of a totalitarian regime.57
[ 34] Amostra has an obligation to respect and ensure rights of all the individuals, including
those of Applicant-1s, thereby, refraining from restricting the exercise of the rights where
it is not expressly allowed under international law. The obligation to ensure is a positive
duty that requires States to both fulfill and to protect rights.58
3) Restriction(s) must pursue the principle of Necessity and Proportionality to secure
a Legitimate Aim:
[ 35] Applicant-1s intention behind being a party to the peaceful protest is not to spread or
incite violence or threaten the Government machinery. A threat to public order is the most
54

Ezelin v. France App No. 11800/85 (ECtHR, 26 April 1991).

55

See Human Rights Committee, Lee v. the Republic of Korea Comm No. 1119/200220 (HRC, July 2005)
para.7, 3.
56

IACHR, Report on the situation of human rights defenders in the Americas, (7 March 2006)
OEA/Ser.L/V/II.124, Doc. 5 rev.1 para 52-68.
57

See Communist Party of Germany v. the Federal Republic of Germany App No. 250/57 (ECtHR, 20 July
1957); B.H, M.W, H.P & G.K. v. Austria App no. 12774/87 (ECtHR, 12 October 1989); Nachtmann v. Austria
App No. 36773/97 (ECtHR, 9 September 1998); Schimanek v. Austria App No. 32307/96 (ECtHR, 1 February
2000).
58

Plattform rtze fr das Leben v. Austria App No. 10126/82 (ECtHR, 21 June 1988).

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frequently cited reason for prohibiting or imposing broad restrictions on assemblies, but,
the focus should be on the stated intentions of the organizers rather than the mere
possibility of disorder, and the responsibility remains with the authorities to maintain order
and facilitate public assemblies.59
[ 36] International law recognizes an inalienable right to take part in peaceful assemblies.
Assemblies are presumed lawful, subject to the permissible limitations set out in Art. 21,
ICCPR. 60 A broad interpretation of the term peaceful is to be afforded 61 while giving
regard to the manner in which the assembly is held and to the intentions of the participants.
[ 37] The peaceful intention of the organizers is not undermined by the possibility that an
assembly might provoke opposition among some sectors of society; rather, the importance
of public assemblies as means of conveying controversial viewpoints means that assemblies
might well cause offence or annoyance among other groups or individuals.
[ 38] By virtue of international standards, Applicant-1 submits that the state of Amostra is
bound to respect and fully protect the rights of all individuals to assemble peacefully and
associate freely; including in the context of elections62 and that the enactment of the ESA is
not valid to hold Applicant-1 liable.

59

Gneri and Others v. Turkey Comm No. 42853/98, (ECtHR , 12 July 2005); ECtHR, Oya Ataman v. Turkey
App No. 74552/01 (ECtHR, 5 December 2006) para 35 and 36; Ezelin v. Franc App no. 11800/85(ECtHR , 26
April 1991), Ziliberberg v. Moldova App No.61821/00 (ECtHR, 4 May 2004) ; Ouranio Toxo and Others v.
Greece App No. 74989/01 (ECtHR, 20 October 2005) para. 43; Handbook on Monitoring Freedom of Peaceful
Assembly, OSCE 27 September 2011. Access at: http://www.osce.org/odihr/82979?download=true.
60

UNHRC, Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association,
Maina Kiai (21 May 2012) A/HRC/20/27 para. 26; UNHRC, Report of the Special Rapporteur on the rights to
freedom of peaceful assembly and of association, Maina Kiai, (24 April 2013) A/HRC/23/39 para. 50, and
Office for Democratic Institutions and Human Rights (ODIHR) of the Organization for Security and
Cooperation in Europe(OSCE), Guidelines on Freedom of Peaceful Assembly (2nd edition, 2010), para. 30.
61

Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd rev. ed. Kehl am
Rhein, Engel, 2005) p. 487.
62

UNHRC, The rights to freedom of peaceful assembly and of association (6 October 2010) A/HRC/RES/15/21.

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C.

WHETHER OR NOT AMOSTRA HAS JURISDICTION TO OBTAIN AND

ENFORCE THE CIVIL ORDER AGAINST SEESAY IN AMOSTRA AND SARRANTO?

[ 39] The term jurisdiction means the power of a court to hear and decide a case or make a
certain order and is used to refer to the territorial limits within which the jurisdiction of a
court may be exercised. Thus, it is an aspect of a States sovereignty and is generally
confined to the territory of that State.63
[ 40] It is most humbly submitted that the courts of Amostra lack jurisdiction to obtain and
enforce the civil orders against SeeSay in Amostra and Sarranto.
1) That the Courts of Amostra have no jurisdiction to obtain the civil order against
Applicant-2, SeeSay.
[ 41] International law has no specific rules governing the jurisdiction of a state for
adjudication or determination of private claim.64 Each nation is at liberty to determine not
only the limits upon the exercise of jurisdiction by its own courts, but also the range of
jurisdiction which it is willing to concede to foreign states where a cross-border claim
arises.
2) Courts of Amostra have no jurisdiction to obtain an order of global removal against
Applicant-2 by virtue of the rule of reason.
[ 42] No single country should have veto power over internet speech. 65 Applicant-2 submits
that in light of the potential for overlapping and possibly clashing jurisdictional assertions,

63

Al-Skeini and Others v. the United Kingdom App no. 55721/07 (ECtHR, 7 July 2011) Para 131.

64

Third Restatement, Foreign Relations Law (U.S.) s 19, comment d at 63 (1962) (making a. reservation for
cases of "denial of justice"). See also id. 186
65

Vera Ranieri, Canadian Court Affirms Global Takedown Order to Google (12 June 2015), Electronic
Frontier Foundation, online: https://www.eff.org/deeplinks/2015/06/canadian-court-affirms-global-takedownorder-google accessed on 16th September 2016.

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a meta-rule of jurisdictional reasonableness may seem to be appropriate. 66 Jurisdictional


rule of reason67 implies that a jurisdictional assertion will only be lawful if is exercised
reasonably, i.e., after State courts have balanced the different interests involved in a
transnational situation before applying their own law.68
[ 43] Jurisdiction and the substantive governing law in cases relating to internet should be
restricted to States in which the publicist is established and jurisdiction should not be
established simply because the content has been viewed in a certain State.69 In order to
ensure an effective protection of public interest, Information society services should be
supervised at the source of the activity and be subject to the law of the State in which the
service provider is established.70 Under this, claims would be governed by the law of the
nation where final editorial decisions are made and final technical work is done to upload
the material.71
[ 44] In order to determine the applicable law, four territorial factors play a role: location of
the Internet user(s); location of the servers storing the data; locus of incorporation and
registry of domain name of the Internet companies in question.72

66

HG Maier, Jurisdictional Rules in Customary International Law, in KM Meessen (ed), Extraterritorial


Jurisdiction in Theory and Practice (1996) 64, 69; A Bianchi, Reply to Professor Maier, in ibid 74.
67

Third Restatement, Foreign Relations Law (U.S.) s 403.

68

See Timberlane Lumber Co v. Bank of America (1983) 574 F. Supp1453; Mannington Mills, Inc v.
Congoleum Corp (1979) 595 F 2d 1287.
69

UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the
Media and the OAS Special Rapporteur on Freedom of Expression (28 December 2005) (Joint Declaration for
promoting freedom of expression)
70

European Parliament and council Commerce Directive, 2000/31/EC (8 June 2000) , available at

<http://europa.eu.int/ISPO/ecommerce/legal/documents/2000_31ec/2000_31ec_en.pdf > accessed on September


2016.
71

See Media Law Resource Centers Comments to the European Commission,


<http://www.europa.eu.int/comm/justice_home/unit/civil/consultation/contributions/mlrc_en.pdf> accessed on 7
September 2016 .
72

See PS Berman, Globalization of Jurisdiction, (2002) Vol 151 U.Pa.L. Rev 311, pg 447-58.

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[ 45] SeeSay in the present case, is social media platform headquartered and has a worldwide
server base in Sarranto. Thus, only Sarranto courts can have the jurisdiction to entertain the
matter and the substantive applicable law will also be that of Sarranto and not of Amostra.
[ 46] In Lauritzen v. Larsen,73 while balancing different contacts between three States and
comparing the provisions of the potentially applicable national laws as to coverage and
liability, the Court held that the Jones Act cannot be applied to avoid a violation of
international law, also the foreign connecting factors were more significant than the
American ones.
a. Courts of Amostra have no jurisdiction to obtain the civil order against Applicant-1
by virtue of the principle of sovereign equality.
[ 47] Laws extend so far as, but no further than the sovereignty of the State which puts them
into force.74 The attempt of imposing national laws to some other nation really goes beyond
reasonable limits.75 The court has jurisdiction only to rule on the damage caused in the

73

(1953) 345 U.S. 571.

74

F.A. Mann, The Doctrine of International Jurisdiction Revisited After Twenty Years
Recueil des cours. t. 186 (1984) p. 9-116;See further Austen L. Parrish, Sovereignty, Not Due Process:
Personal Jurisdiction over Nonresident Alien Defendants(2006) 41(1)Wake Forest Law Review1
<http://www.repository.law.indiana.edu/facpub/884> acessed on 5 th October, 2016; Satvinder S. Juss,
Nationality law, sovereignty, and the Doctrine of Exclusive Domestic Jurisdiction (1994) 9(2)Florida Journal
of International Law 219; H.S. Lewis, The three deaths of States Sovereignty and the curse of abstraction in
the jurisprudence of personal jurisdiction(1983) 58Notre Dame Law Review 699.
75

Keith Perine, Frontier-free Internet back behind national boundaries. Hate Foes Praise Yahoo Move,
REUTERS, Jan.3, 2001; Clark (Inspector of Taxes) v. Oceanic Contractors Inc. [1983] 2 AC 130, para 145; Al
Sabah v. Grupo Torras SA & Another [2005] 2 AC 333, para. 13; Lawson v. Serco Limited [2006] UKHL 3
para. 6; Agassi v. Robinson (Inspector of Taxes) [2006] UKHL 23 para 16, 20 and Al-Skeini v. Secretary of State
for Defence [2007] UKHL 26 para 11

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member state within which the court is situated.76 The laws of one State have no operation
outside of its territory, except so far as is allowed by comity.77
[ 48] Principles of sovereignty and non-interference in the internal affairs of another neither permits a
State to prescribe laws for persons in the territory of another78 nor does it permit a state to apply its
own laws extraterritorially. Thus, Courts have to be very cautious in making orders that might limit
the expression in another country where there is a possibility that an order with extraterritorial effect
may offend another states core values, for instance, right of expression or right to know, the order
should not be made.

[ 49] Imposing traditional jurisdictional analysis to the internet creates the problem of selfpolicing of online content and activities, including voluntarily censoring content and
further, complying them with any number of laws from countries.79
[ 50] In such circumstances, less tolerant countries may dictate the laws of the internet as
companies bow to their more repressive internet standards out of fear of liability 80 and
smaller companies could be pushed out of the Internet economy altogether, less they accept
the rules of the countries in which the company may unexpectedly find itself facing a
lawsuit halfway around the globe.
b. Courts of Amostra have no jurisdiction to obtain an order of global removal against
Applicant-2 by virtue of having no subsisting effect.

76

Pez Hejduk v. EnergieAgentur.NRW GmbH Regulation (EC) No 44/2001 (ECJ 22 January 2015)

77

Pen noyer v. Neff (1878) 95 U.S. 714 para 722; See World-Wide Volkswagen Corp. v. Woodson, (1980) 444
U.S. 286, 292
78
RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES 231 (1987);
see also Vaughan Lowe & Christopher Staker, Jurisdiction in Malcolm D. Evans (eds.) International Law
(Oxford: Oxford University Press, 2010), 313.
79

Adria Allen, Internet Jurisdiction Today, 22 Nw. J. Int'l L. & Bus. 69 (2001-2002); See also David McGuire,
Group Blasts Yahoo Nazi Ruling as Setback For Civil Liberties, NEWSBYTES, November 11, 2000 (quoting
CDT policy analyst AriSchwartz).
80

See Subcommittee on International Transactions, Transnational Issues in Cyberspace: A Project on the Law
Relating
to
Jurisdiction,
AMERICAN
BAR
ASSOCIATION,
available
at
<http://www.abanet.org/buslaw/cyber/initiatives/prospect.html >assessed on 15 th October, 2016.

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[ 51] Applicant-2 submits that the order of global removal is futile as it has no subsisting
effect. The ultimate purpose behind the order is to prevent future access to the column of
Applicant-1 by any one, which could further threaten the democratic process of the State.
However, the violence at the peaceful protest which is alleged to have been caused by the
circulation of the column has already occurred on August 1. The alleged effect of the
column has already occurred and now it does not have any subsisting or lingering effect.
Thus, the appeal for a global removal request is unreasonable and serves no valid purpose
as it has no future purpose.
3) That the Courts of Amostra have no jurisdiction to enforce the civil order in
Amostra and Sarranto.
[ 52] Enforcement jurisdiction refers to a States jurisdiction to enforce or compel
compliance or to punish non-compliance with its laws or regulations, whether through the
courts or by use of executive, administrative, police, or other non judicial action in another
territory.81
[ 53] ICJ in the Lotus case82 held that the States are not entitled to enforce their laws outside
their territory, except by virtue of a permissive rule derived from an international custom or
convention83 even where they have jurisdiction to prescribe their laws extraterritorially.
[ 54] Jurisdiction to adjudicate in the enforcement of foreign judgments is also limited. For
instance, in a suit filed in a Californian District Court, the court issued a declaratory
judgment that Yahoo! could not be forced to comply with French laws84 because doing so
would violate its right to freedom of expression under the First Amendment by chilling

81

82

83

84

Third Restatement of U.S. Foreign Relations Law 401 (c).


S.S. Lotus, France v. Turkey (ICJ, 7 September 1927) Series A - No. 10
Ibid
Yahoo! Inc. v. La Ligue Contrele Racisme et lAntisemitisme (2001) 169 F. Supp. 2d 1181

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protected speech. Similarly, courts at various instances have refused to enforce foreign
judgments that were inconsistent with their national laws.85
[ 55] In the words of Mr. Justice Gray, no law has any effect, of its own force, beyond the
limits of the sovereignty from which its authority is derived. The extent, of which the law
of one nation shall be allowed to operate within the dominion of another nation, depends
upon the comities of nations, having due regard both to international duty and convenience
and to the rights of its own citizens under the protection of its laws.86
[ 56] By a rule of local public policy, a forum can refuse to give any effect to a foreign
judgment that is against its own sovereign interest in protecting the constitutional and statutory
rights of its residents. 87 Also, where the assertion of jurisdiction by the rendering Court

lacked jurisdiction to do so in the international sense,88 or violated international law, the


enforcement of the resulting (foreign) judgment does so as well, whether performed by
courts of the same or of another State. The enforcement of a judgment that does not
conform to human rights can also be a violation of human rights.89
[ 57] It is submitted that it when a strong public opinion is created not only at the domestic
level, but, at the international level too, it keeps a check on the government to become more
85

Ibid; See also Vladimir Matusevitch v. Vladimir Ivanovich Telnikoff (1995) 877 F. Supp. 1; Sarl Louis Feraud
International v. Viewfinder Inc. (2005) 406 F.Supp .2d 274
86

Hilton v. Guyot (1895) 159 U.S. 113, at p. 163; See also Stevens v. Fisk (1884), Cameron Supreme Court
Cases 392, at pp. 424, 431; Canadian Pacific Railway Co. v. The Great Western Telegraph Co. (1889) 17
S.C.R. 151; Monette v. Larivire (1926) 40 B.R. 350, at p. 357.
87

Gates Learjet Corp. v. James B. Jense (1984) 743 F.2d 1325; Bachchan v. India Abroad Publications
Inc.(1992) 585 N.Y.S.2d 661
88

Vezina v.Will H. Newsome [1907] 14 O.L.R. 658; Queen v. Wright [1877] 17 N.B.R. 363 (C.A.); Mattar and
Saba v. Public Trustee [1952] 3 D.L.R. 399 (CA.); Burn v. Bletcher [1863] 23 U.C.Q.B. 28 (C.A.); Webster
MacLaughlan Co. v. Connors Bros. Ltd. [1936] 2 D.L.R. 164 (C.A.); Wanderers Hockey Club v. Johnson
(1913), 25 W.L.R. 434, 18 B.C.R. 367, 14 D.L.R. 42 (C.A.); Bank of Ottawa v. Esdale [1920] 1 W.W.R. 913;
Schneider v. Woodworth [1884] 1 Man. R. 41; Fairchild v. McGillivray [1910] 16 W.L.R. 562; State Bank of
Butler v. Benzason [1914] 27 W.L.R. 812; Willie v. Martin [1931] 3 W.W.R. 465 (B.C.); British American
Investment Co. v. Flawse [1911] 19 W.L.R. 253; Curtis v. Curtis [1943] O.W.N. 382; Capital Nat. Bank v.
Merrifield [1968] 1 O.R. 3; Burchell v. Burchell [1926] 58 O.L.R. 515; See also Evans v. Evans [1912] 50
S.C.R. 262 ; Bonn v. National Trust Co. Ltd. [1930] 65 O.L.R. 633.
89

Pellegrini v. Italy App no. 30882/96 (ECtHR, 20 July 2001)

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responsive and sensitive to its citizenry. Dismissal of the application for civil order at the
global level against Applicant-1 is not only in consonance with the universal rights of
citizens of Amostra, but, also those of the other States.

D.

WHETHER OR NOT AMOSTRAS CIVIL ORDER AGAINST SEESEY VIOLATES

INTERNATIONAL PRINCIPLES, INCLUDING ARTICLE 19 OF UDHR AND ARTICLE

19 OF THE ICCPR?
[ 58] Internet is a critical medium through which the freedom of speech and expression
embedded in Art. 19 of UDHR and ICCPR are exercised. If laws can censor us to limit our
access to certain information, or restrict use of communication tools, then the internet's
incredible potential will go unrealized.90
[ 59] It is humbly submitted that the Amostras civil order against SeeSey is highly violative
of international principles, including Art. 19 of UDHR and Art. 19 of ICCPR.
1) That the right to disseminate information is an essential part of Art. 19 of UDHR
and Art. 19 of ICCPR.
[ 60] Freedom of opinion and expression are essential for any society. 91 This right includes
freedom to seek, receive, and impart information and ideas of all kinds.92 It protects all

90

Freedom of expression and ICTs: Overview of international standards (2013)


<https://www.article19.org/data/files/medialibrary/37380/FoE-and-ICTs.pdf> assessed on 5th September, 2016
91

See also Benhadj v. Algeria comm No. 1173/2003 (HRC,20 July 2007) U.N. Doc. CCPR/C/90/D/1173/2003;
Tae Hoon Park v. Republic of Korea Comm No. 628/1995 (HRC, 5 July 1996) U.N. Doc.
CCPR/C/64/D/628/1995.
92

Article 13 of the Inter American Convention on human rights Declaration on Principles on Freedom of
Expression (adopted 20 October 2000). see Article 9 African Charter on Human and peoples Rights (adopted
27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58, See Article 10 European Convention of
Human Rights (adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 1932.

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forms of expression and the means of their dissemination, including electronic and internetbased modes of expression.93
[ 61] This right has a very broad scope94 and applies fully to information distributed through
the internet.95 Even information or ideas that may be regarded as critical or controversial by
the authorities or by a majority of the population, or which may shock, offend or disturb96
are also covered by this considering that the rights that people have offline must also be
protected online.97
[ 62] Freedom of expression is also protected u/a 10,98 which encompasses political speech as
well as speech related to government criticism.99 In PravoyeDelo and Shtekel v. Ukraine,100

93

HRC, General Comment 34 (12 September 2011) UN Doc CCPR/C/GC/34 (General Comment 34) para
12.
94

IACHR, Annual Report of the Office of the Special Rapporteur for Freedom of Expression.Chapter III (InterAmerican Legal Framework of the Right to Freedom of Expression) (30 December 2009) Annual Report 2009
OEA/Ser.L/V/II. Doc. 51 para. 3.
95

UNHRC The promotion, protection and enjoyment of human rights on the Internet(June 29, 2012)
A/HRC/20/L.13 para. 1. Available for consultation at:
<http://ap.ohchr.org/documents/alldocs.aspx?doc_id=20280> assessed on 12 th September, 2016. Also, see
IACHR, Annual Report of the Office of the Special Rapporteur for Freedom of Expression. Chapter III (InterAmerican Legal Framework of the Right to Freedom of Expression) (30 December, 2009) Annual Report 2009
OEA/Ser.L/V/II. Doc. 51 Para. 8; IACHR Compulsory Membership in an Association Prescribed by Law for
the Practice of Journalism (Arts. 13 and 29 American Convention on Human Rights) (IACtHR, 13 November
1985) Opinion OC-5/85 (Ser. A) No. 5 (1985) para.70; Claude-Reyes et al.v. Chile (IACtHR, 19 September
2006) Series C No.151. Para.85; Herrera-Ulloa v. Costa Rica (IACtHR, 2 July 2004) Series C No. 107
Para.112; Ricardo Canese v. Paraguay (IACtHR, 31August 2004) Series C No. 111. Para.82; Ros et al. v.
Venezuela (IACtHR, 28 January 2009) Series C No. 194.Para. 105; Perozoet al. v. Venezuela (IACtHR, 28
January 2009) Series C No. 195.
96

Handyside v. the United Kingdom, ECtHR Judgment, 7 December 1976, 49.

97

UNHRC The promotion, protection and enjoyment of human rights on the Internet (29 June 2012)
A/HRC/20/L.13.
98

European Convention on Human Rights adopted 4 November 1950, entered into force (3 September 1953)
213 UNTS 1932
99

Monica Macovei, Freedom Of Expression: A Guide To The Implementation Of Article 10 Of The European
Convention On Human Rights (Council of Eur., Human Rights Handbook Ser. No. 2, 2004), available at
<http://www.coe.int/t/dgi/publications/hrhandbooks/HRHAND02)(2004)_en.pdf > assessed at 15 October,
2016.
100

App no. 33014/05 (ECtHR, 5 May 2011)

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the Court, for the first time, acknowledged that Article 10101 imposes on States a positive
obligation to ensure effective protection of journalists freedom of expression on the
internet.
[ 63] Moreover, no one who simply provides technical internet services like hosting is liable
for content generated by others disseminated through it -mere conduit principle. 102
However, even where an internet intermediary is ordered to remove certain internet content,
by default, such removal shall be geographically limited rather than having a global
reach.103
[ 64] Prohibiting an information dissemination platform from publishing material solely on
the basis that it may be critical of the government or the political social system espoused by
the government is not legally valid,104 as it being a violation of the creators freedom of
expression: the right to communicate that content in the countries where doing so is lawful,
and is also an interference with the availability of content in countries that may be perfectly
lawful there.
[ 65] Political reporting and journalism attract a high level of protection under Art. 10.105 The
limit of acceptable criticism is wider 106 with regard to a politician acting in his public
capacity. The protection of the politicians reputation must be weighed against the public
101

ECHR adopted 4 November 1950, entered into force (3 September 1953) 213 UNTS 1932

102

UN Special Rapporteur on Freedom of Opinion and Expression, OSCE Representative on Freedom of the
Media, OAS Special Rapporteur on Freedom of Expression and ACHPR Special Rapporteur on Freedom of
Expression and Access to Information (1 June 2011) (Joint declaration on freedom of expression and the
Internet) Article 2.
103

UNESCO Internet study available at


<http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/CI/CI/pdf/Events/netconference_march2015_subm
issions/B/response_from_prof_dan_jerker_b_svantesson.pdf> assessed at 18th September, 2016.
104

General comment 34th on article 19 para 43, Concluding observations on the Syrian Arab Republic
(CCPR/CO/84/SYR)
105

106

Mosley v. the United Kingdom App no. 48009/08 (ECtHR, 10 May 2011) para 129.
Niskasaari and OtavamediaOy v. Finland App no. 32297/10, (ECtHR 23 June 2015) para 9 and 54-59.

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interest107 in the open discussion of political issues, or otherwise be justified by particularly


compelling reasons.108
[ 66] The order of the Supreme Court against Applicant-2 for removing the alleged offensive
column and comments posted is illegal as comments on matters of general interest or
political issues generally enjoy a high level of protection of freedom of expression109 even
if its a case of exaggeration or provocation, or somewhat immoderate statements.110
[ 67] When a civil-law ban on publication of an impugned passage in an article had been
arbitrarily imposed. The court held that the limits of journalistic freedom in publishing the
disputed passage were not exceeded. There was no pressing social need for placing the
protection of a partys reputation above the newspapers right to freedom of expression and
the general interest in promoting this freedom where issues of public interest were
concerned.111
[ 68] The restrictions to freedom of expression must be interpreted narrowly. 112 The nature
and severity of the sanctions imposed must be taken into account when examining the
proportionality of a restrictive measure.113 Such means should be chosen which cause the
least possible prejudice to the rights in question.114 It is crucial to assess the impact of that

107

See, Observer and Guardian v. the United Kingdom App No. 13585/88 (ECtHR,26 November 1991); Bladet
Troms and Stensaas v. Norway App no. 21980/93 (ECtHR, 20 May 1999).
108

see Timpul Info-Magazin and Anghel v. Moldova App no. 42864/05 (ECtHR,27 November 2007)

109

Axel Springer AG v. Germany App no. 39954/08 (ECHR, 7 February 2012) 90; Morice v. France App no.
29369/10 (ECtHR, 23 April 2015) 125
110

Willem v. France App no. 10883/05 (ECtHR, 16 July 2009) 33

111

Axel Springer AG v. Germany (no.2) App no. 48311/10 (ECtHR, 10 July 2014) 76, Also see Srek v.
Turkey(no. 1) App no. 26682/95 (ECtHR, 8July 1999) 62
112

Oberschlick v. Austria (no. 2) App No. 20834/92 (ECtHR, 1 July 1997) para 29; Lindon, OtchakovskyLaurens and July v. France [GC], App nos. 21279/02 and 36448/02 (ECtHR, 22 October 2007)
113

Morice v. France [GC] App no. 29369/10 (ECtHR, 23 April 2015) para 127; Cumpn and
Mazre v. Romania [GC] App no. 33348/96 (ECtHR, 17 December 2004) para 111.
114

Mouvementralien Suisse v. Switzerland [GC] App no.16354/06 (ECtHR, 13 July 2012)

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restriction not only from the point of view of the directly affected private parties but, also
from the perspective of the impact on the internet115 and, as a consequence, on the right to
freedom of expression of all users from a digital perspective.116 In other words, standards of
liability in civil cases should take into account the overall public interest in protecting both
the expression and the forum in which it is made (i.e. the public square aspect of the
internet).117 Also, only the exceptional types of expressions are limited under international
law.118
[ 69] Furthermore, the principle of linking liability plays an important role in the present
case, wherein no liability is imputed to the hyperlinker based on the illegal content of the
hyperlinked web pages. Thus, the State has a narrow margin of appreciation with regard to
information disseminated through the medium, as linking by itself cannot be understood as
a tacit expression of approval of the hyperlinker.119 It is submitted that the State of Amostra
cannot accrue any liability to Applicant-2, the hyperlinker, when some content, be it legal
or illegal, is posted on it through The Times account, the hyperlink, because Applicant-2
has no de jure or de facto control over The Times account.

115

See Morice v. France App no. 29369/10 (ECtHR, 23 April 2015 127; Cumpn and Mazre v. Romania
[GC], no. 33348/96, 111, ECHR 2004-XI).
116

IACHR, Freedom of Expression and the Internet (31 December, 2013) OEA/Ser.L/V/II
CIDH/RELE/INF.11/13
<http://www.oas.org/en/iachr/expression/docs/reports/2014_04_08_Internet_ENG%20_WEB.pdf> assessed on
4 September, 2016. Also, UN Special Rapporteur on Freedom of Opinion and Expression, OSCE Representative
on Freedom of the Media, OAS Special Rapporteur on Freedom of Expression and ACHPR Special Rapporteur
on Freedom of Expression and Access to Information (1 June 2011) (Joint declaration on freedom of
expression and the Internet) Point1 (b).
117

UN Special Rapporteur on Freedom of Opinion and Expression, OSCE Representative on Freedom of the
Media, OAS Special Rapporteur on Freedom of Expression and ACHPR Special Rapporteur on Freedom of
Expression and Access to Information (1 June 2011) (Joint declaration on freedom of expression and the
Internet) Para 4 (b).
118

UNHRC, Report of the Special Rapporteur on the promotion and protection of the right to freedom of
opinion and expression (10 August 2011) A/66/290
<http://www.ohchr.org/Documents/Issues/Opinion/A.66.290.pdf> assessed on 6th October, 2016.
119

Mouvement Ralien Suisse v. Swizerland, App no. 16354/06 (13 July 2012).

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2) That the Right to Information is an essential part of Art. 19 of UDHR and Art.
19 of ICCPR.
[ 70] Communication is a basic human need and no one should be excluded from the benefits
the Information Society offers.120 Right to Information finds its voice in Abraham Lincolns
conception: Let the people be aware of the facts, and the country will be calm.
[ 71] It is submitted that the civil order in relation to the alleged offensive content against
Applicant-2 is illegal as it violates universal right to information121. Not only does the press
have the task of imparting information and ideas of public interest, the public also has the
right to receive them and any restriction imposed on the means necessarily interferes with
this right.122
[ 72] It is humbly submitted that the governments curb internet intermediaries by
constraining their freedom by removing the content which they deem illegal or
harmful123, either directly by a state regulator,124 or by adopting legal regimes for civil
liability.125
[ 73] Applicant-2 submits that the order for removal of content on a global level is not in
consonance with Art. 10 126 as they are enshrined regardless of frontiers; States may
restrict information only in accordance to Art. 10.127 The freedom to receive information

120

Declaration of Principles, Building the Information Society: a global challenge in the new Millennium, X(12
December 2003) WSIS-03/GENEVA/DOC/4-E, available from: <http://www.itu.int/wsis/docs/geneva/
official/dop.html.> assessed on 7th September, 2016.
121

UDHR and ICCPR

122

See Autronic AG v. Switzerland (IACtHR, 22 May 1990) Series A no. 178 para 47; De Haes and Gijsels v.
Belgium App No. 19983/92 (ECtHR, 24 February 1997) para 48; News Verlags Gmbh and Cokg v. Austria App
no. 31457/96 (ECtHR, 11 January 2000) para 39.
125

See, Joe McNamee, Internet intermediaries: the new cyber police 2011, available at <http://www.giswatch.
org/en/freedom-association/internet-intermediaries-newcyberpolice> assessed on 20 September, 2016.
126

127

Art. 10, ECHR (adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 1932
Cox v. Turkey App no. 2933/03 (ECtHR, 20 May 2010) para. 31

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prohibits a Government from restricting a person from receiving information that others
wish or may be willing to impart to him.128 The Governments primary duty is, thus, not to
interfere with communication of information between individuals, be they legal or natural
persons.129
[ 74] While States are required to ensure that internet access is maintained at all times,
including during times of political unrest,130 the State of Amostra has violated the universal
right to information of people u/a 19 of UDHR and ICCPR by ordering the removal of the
alleged offensive content worldwide.

128

Roche v. the United Kingdom [GC] App no.32555/96 (ECtHR, 19 October 2005) para.172; See also
Trsasg A Szabadsgjogokrt (Hungarian Civil Liberties Union) v. Hungary App no. 37374/05 (ECtHR, 14
April 2009) para. 35; sterreichische Vereinigung Zur Erhaltung, Strkung Und Schaffung Eines Wirtschaftlich
Gesunden Land- Und Forstwirtschaftlichen Grundbesitzes v. Austria App no. 39534/07 (ECtHR, 28 November
2013) para. 41; Youth Initiative for Human Rights v. Serbia App no 48135/06 (ECtHR, 25 June 2013); Kenedi
V. Hungary App no. 31475/05 (ECtHR, 26 May 2009).
129

HRC, General Comment 34 (12 September 2011) UN Doc CCPR/C/GC/34 (General Comment 34) para
22;
130

Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and
Expression (16 May 2011) UN Doc A/HRC/17/27 (UNHRC May 2011 Report) para.79.

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PRAYER
For the foregoing reasons, the Applicants respectfully request this Honourable Court to
adjudge and declare:
A. That Amostras prosecution of Ballaya under the Stability and Integrity Act of
2014 (SIA) violates international principles, including Article 19 of UDHR and
Article 19 of the ICCPR.
B. That Amostras prosecution of Ms. Ballaya under the Election Safety Act of 2016
(ESA) violates international principles, including Article 19 UDHR and Article 19
of the ICCPR.
C. That Amostra has no jurisdiction to obtain and enforce the civil order against
SeeSey in Amostra and Sarranto.
D. That Amostras civil order against SeeSey violates international principles,
including Article 19 of UDHR and Article 19 of the ICCPR.
Respectfully submitted this nineteenth day of November
216A
Counsel for the Applicants

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