so so far you've survived almost one and a half days of this wonderful conference so congratulations we still have a bit of a hike to go but making wonderful observations in progress hello my name is doreen weis and i'm director of the media law and policy initiative at northwestern university in chicago and i also teach a global freedom of expression in the press at both the law and journalism schools there so i'm always happy to come here to columbia where i can meet many of my colleagues and friends share ideas talk about cases but most importantly how to plan ahead for the battles that are before us now our panel for today is called around the world in seven decisions but unfortunately we have to rename it to around the world in six decisions one of our panelists munir ahmad ii of afghanistan was not able to get his visa it approved in time by the us consulate so therefore he could not attend the conference but i please bear with me for a moment because i'd like to give him a bit of a shout out because he's done some very impressive work and a little bit later after we're done with her panels at adobe who has been working with minear we'll address some of the things that they have been working on some of us know munir is a young and accomplished media lawyer in his country and he's the media law and policy program manager at inter news network and a legal trainer for the afghan independent bar association he's written books on media law he teaches at parwan university and since two thousand and thirteen he has  led and coordinated the price media law moot court competition teams from afghanistan and has coached a number of the teams there he is a practitioner who has contributed to the drafting and advocating of efforts and laws on media law access to information and internet policy in afghanistan what he told me was that he wanted to talk about today that while there haven't been many free expression in media cases in the courts in afghanistan as more cases are settled politically he did want to discuss a very serious issue which we touched on considerably yesterday and that is violence against journalists last year in twenty seven tw fifteen journalists and media workers were killed so he would have been happy to hear about some of the positive developments on this issue had he been here yesterday but later on toby will fill us in on some of the other  traditional work that's been going on so moving forward our panelists here will present a key recent decision from their respective jurisdiction and explain its importance and implications for freedom of expression in their region of the world or perhaps beyond now we didn't tell them to pick a negative or a positive case but they all pick positive cases so i think that will make onions very happy that we do have some good news to look at i would like to introduce our speakers to recognize their efforts for being on the ground and really pushing forth on some of these battles in the trenches quickly our first speaker to my immediate left your right is dario melos many of you know him from prior conferences he's from south africa and he is a partner in the law firm of weber wentzel and a visiting professor at wits university where he teaches media law access to information and privacy law he has acted for the media in numerous high profile cases many of which you have followed including the famous defamation case brought by the former president nuni again someone that you all know is an advocate at the supreme court of india and she is a recognized international human rights lawyer she has served as a legal policy advisors to government's united nations companies civil society movements and has argued against uncounseled restrictions on online speech before the supreme court of india okay we had a little switch of seats here okay toss gasparian is a media lawyer in brazil and is served as chief of staff of the ministry of justice and a member of the board of directors of the association of advocates of san paulo and is a member of the brazilian copyright association her practice focuses on consulting and litigation especially on freedom of speech next is a south bend khalifa also a human rights lawyer in tunisia and serves as the un office of the high commissioner for human rights in that country she has supported civil society organizations working on women's rights by defending women subjected to sexual and domestic violence and has taught courses on human rights and then umer golani of pakistan is a partner of the law and policy chambers and an advocate of the high court of pakistan he has worked with the supreme journalism at a de montfort university in lancaster and is a consultant for the oxford program on comparative media law and policy where he also has worked for the price media law moot court competition i think many of us share on those duties so what we have here represented are cases from south africa india tunisia pakistan and brazil and richard will talk about a case from the european court of human  rights after our panelists have had a chance we will have a couple of other updates from members in the audience so as i said you'll be pleased to know that these are mostly positive results and the presentations will address those areas but these cases really travel the range of different kind of cases from the broadcast of court trials a landmark case in privacy journalistic news gathering during demonstrations whether an l ngo can operate its own web radio the legality of mobile network shutdowns and censorship of the news media for publishing hacked information of the first lady of that country so really looking forward to these recitation of these cases and learning lessons and themes of what we can follow from beyond that so our first up is dari thanks very much doreen thanks annie as holy it's an honor to be here again and to address you i'll be speaking about an important case on open justice in south africa before i get to the actual case i thought i would just have a mention a few points by way of context in relation to open justice and that is that they off have been for developments in recent years the first of about five or six years ago was our constitutional court recognizing open justice which is of course a very powerful common law principle that courtrooms have to be open to the public the constitutional court recognized that as a constitutional right and it did so pretty much on the same basis that the australian courts recognized freedom of communication as an implied constitutional right and strategically that is very important and created a lot of space for litigation because it meant that there was a constitutional right that we could litigate on the right of open justice even though it's not numerated as a right in our constitution like freedom of expression and the court said it is based on freedom of expression and the right of p the public to receive information and tribunals and any adjudications which involve public interest so for example when a very senior prosecutor was facing a disciplinary inquiry from the prosecuting authority and she alleged it was politically motivated because she wanted to prosecute our former president and it's really great to be able to see our former president jacob zuma that was that was something that took place in public even though it was an internal disciplin hearing and not a court proceeding thirdly important contextual principle is a couple of years ago the same judge who decided the case i'm i'm going to talk about shortly judge ponen also decided that open justice means that documents that are filed have to be made available to the public and that was very important because until then until court cases began in public you couldn't access the court documents and the media was  judge said is that from the moment they are filed the public is entitled in the media entitled to access the court documents and that means if the case never in fact goes ahead because it's settled etc you can still get access to the court documents so another important principle this leads me to the fourth development which is broadcasting and streaming the courts and that is the case i'm going to talk about today it's a recent case of our supreme court of appeal a little bit of history  it was the case that from about five years ago so increasingly judges were allowing cameras in their courtrooms but for very limited purposes mainly for the delivery of judgments and then also increasingly for appeal hearings or applications these are cases those of you familiar with the system of law where advocates or attorneys argue the case but there are no witnesses who give evidence and who are cross examined so the argument was that having cameras in those kinds of cases is far more palatable far more acceptable than having cameras where there are trials and where witnesses are under scrutiny live witnesses as i call them not that that means that  murdered his girlfriend on valentine's day he's currently serving thirteen years in jail for the murder and i was involved on behalf of broadcasters in bringing an unprecedented application to televise the criminal trial and i spoke broadcasting of any witness who didn't object and for those witnesses who did object to being broadcast including oscar himself there was audio they didn't consent to audio but the court said that was a good way to balance the right of the  fair trial versus the right to open justice and freedom of expression and of course the court gave the presiding judge the ultimate discretion although that was a groundbreaking decision because it was the first live bro ast of a criminal trial in south africa there were two limitations the one is that it was a provincial decision of our hearting province that meant that it wasn't binding on other provinces in south africa and indeed quite soon after the oscar case there was an application to death televise a high profile trial in another province which was rejected the second point about the oscar pistorius case is of course it it was a negotiated regime  based on audio being the compromise and that wasn't of course giving full effect to the right to open justice then in january two thousand and fifteen there was a gruesome  man wielding an axe murdered a mother and a father their twenty two year old son and seriously injured the sixteen their sixteen year old daughter who was left for dead the twenty year old  second son of the parents was unscathed didn't suffer any injuries and within a few months he was arrested for the murder of his parents and his brother i should say that his sister recovered and miraculously but she retrograde amnesia and doesn't recall anything from that from that evening so you can imagine that that kind of case were there those sort of gruesome facts taking place in the cape province the murders occurring in a very famous expensive golf estate would attract headlines in south africa and indeed the matter attracted massive public interest the defence of henry  the brother who was accused of the murder was that there was an intruder who he was very lucky to escape from and he witnessed the intruder murdering the rest of his family the case has been going on for the last two months judgment is reserved and the judge has indicated he'll give judgment in about three weeks time i predict that henry from badal will be found guilty from some of the evidence that was led including the fact that they were hardly any break ins ever in that security state which prompted the judge to remark that the perpetrator would have to be someone with the skills of a character from the movie ocean's eleven to get into the secured golf estate but what was important  justice point of view is on the first day of the trial the media applied to televise the case and the judge held that the entire case could be televised including the evidence of mister van breda who opposed it and so did the prosecutors there was then an urgent appeal by the accused van bada and the prosecutors to the supreme court of appeal and that's also where we were in we got involved for an amicus the media monitoring group of south africa and the judge began the the right to broadcast court proceedings because in the space of the thirty odd page judgment and within three weeks of hearing the case the judge produced an incredible piece of work ultimately holding that as a default position all cases in south africa whether they be criminal trials civil trials appeals whatever they may be ought to be broadcast and streamed live and that's the punchline of the case the judge found that protection for the media in the right to freedom of expression and the constitutional principle of open justice and he said that although it is about balancing and this is not an absolute principle that in every case there has to be streaming and broadcasting you balance the rights by interrogating any objection by a party who makes an application to say i don't want the trial televised well i don't want my testimony televised for whatever the reason is an invalid ours case the judge said all he has come up with with with is speculative reasons as to why his trial rights would be harmed if he gives evidence in public he said that he's a stutterer and he won't be able to give evidence if he's under the spotlight because of nerves the judge said we'll deal with that as it happens on an ad hoc basis but that's not enough to displace the fundamental presumption which the court held applies that the that court cases have to be broadcast live and the court said all these other concerns have to give way to this general principle so the judge as i say in this master's thesis as i call it went around the law in ten countries looked at the law in the united states canada england and wales northern ireland australia new zealand germany israel brazil and also looked at the principles in for international and regional courts and and they dealt with televising they're proceedings and also relied heavily the judge and the supreme court of survey is the judge says apart from the united states all these jurisdictions do not permit televising trials they permit to some extent experiments experimental televising they permit televising appeals but they don't televise trials but as a result of the south african constitution and the confluence of open justice and freedom of expression the court says we believe it's time to recognize this fundamental principle of televising court  proceedings there was an appeal to the constitutional court which is our final court of appeal in november last year that was rejected by the constitutional court without calling a hearing they thought that it didn't raise any prospects of success and what that means is that case is now the final word in south african law on the right to televise and stream court proceedings and i thought it would be interesting that's some still photographs from the case where mr van breda was asked to mean i know it's just very little stature in going on which was the reason he objected to the televising off the court case so just bringing it all together in summary what this case says is that as a default position not as an absolute rule but as a default position a broadcasting court cases is now the general rule in south africa it's not the exception the media has a constitutional right to broadcast in their entirety on all platforms and all they need to do is advise the court hearing the case within twenty four hours of the proceeding occurring that they'll be there with the cameras it's then up to anyone who wants to object to raise a motivated objection that shows that the broadcast presents and has the test a real risk of demonstrable prejudice  harm and mere speculation that they way that they will be prejudiced will not suffice the court also said even if you object to the broadcasting and streaming of your evidence less restrictive alternatives will be looked at such as an example audio only and not video or in some cases delayed broadcasts but and and the point the court makes repeatedly it's about trying to reconcile as opposed to balancing in the strict sense the right to a fair trial with the right to open justice but the important presumption is now completely reversed whereas the presumption before the cases was that you had no right to broadcast to be there with your cameras after the case it's the reverse and i would suggest it's affected a fundamental change on south africa's south african law and hopefully a case it will be persuasive yes in other jurisdictions thank you thank you so much dario so here to address yet another major major case in fact this was a case heard around the world karuna will talk about the landmark privacy case in india and it came to me that if eyes are always upon me the whole world is a prison this is a truth that is intuitive but i will now talk about three things and and then i'm going to talk about the future cases that arise from it because remember that this is a broad constitutional right that was laid down and the contours of it many of the contours of it i had to be determined on a case by case basis right in our constitution unlike unlike sia the fourth amendment on which a large number of judgments are based that you wouldn't necessarily think would emerge from the right to privacy right like roe versus wade for example the right to abortion essentially what happened was that during arguments against the universal id program that is being hotly contested now as we speak in our supreme court the attorney general of india said that the government's view was that indians do not have a fundamental right to privacy now this was something that surprised some of us because they are there was a six there was a six judge mention an eight judge bench both of which were perhaps not as clear as one would wish and but there was a whole line of judgments after that  as has been happening in a large number of cases the attorney general and the government has been bumping off a lot of controversial cases to larger benches and we thought it would be years before it was decided but the supreme court came together fairly fast and unanimously in six separate opinions which dealt with a number of issues ranging from data protection to state surveillance to abortion and bodily integrity the supreme court decided now they laid down a number of broad doctrines and those doctrines were as i see it the doctrines of bodily integrity mental privacy decisional autonomy and determination now the reason i think that this is important will become clearer as we go through some of the salient parts of the separate opinions and  so for example one of the judges justices celli mesh were rounded his opinion in the concept of liberty not just information or just the right to receive information but in the concept of liberty privacy of choice he also linked it interestingly and very importantly i think with the preamble of the constitution that the preamble talks about democracy right and it talks about dignity and it talks about fraternity um and it was here he said that the constitutional foundations of privacy could be found and he said the dignity of the individual encompasses the right of the individual to develop to the full extent of his potential and this development can only be if an individual has autonomy over fundamental personal choices and control over dissemination of personal information which may be dignity and he brought it all together i think in a sense in violet personality he said is the core of liberty and freedom autonomy liberty and bodily and mental integrity is that the freedoms under article two a nineteen which is a right to free speech right a free expression can be fulfilled where the individual is entitled to decide upon his or her preferences read in conjunction with article twenty one liberty enables the individual to have a choice of preferences and various facets of life including what and how one will eat it sounds like an academic question but it's not in india because at the moment we have huge disputes around where the beef consumption is criminal or not and a number of states have declared that it is in fact criminal and now you know the trouble is of course is that if the government does not see it as incumbent on themselves to act constitutionally on a continual basis then the onus is not just on the courts but on civil society to bring those cases in the first place right so you have government which is huge and governments say decides to say for example that the eating of beef is a beef consumption is criminal in some cases the death penalty was being debated on whether people should be allowed to convert it's a you know some of you are looking puzzled the background to this the background hindu roots and sees india as being hindu nation and it's something that many of us strongly oppose and so this is why the liberty to decide what one will eat is something that is something that was so fundamentally important um the way one will dress the faith one implicit within it the ability to choose a faith and the freedom to express or not to express these choices to the world privacy represents they went on to say the core of the human personality and recognizes the ability of each individual to make choices and to take decisions governing matters intimate and personal now there are those who object to the fact that this is that the this particular judgment was not more concrete was not more specific for instance they grounded the right in article twenty one which is the right to life yes but they also said that it is it emerges from i entire chapter e nineteen i beg your pardon the test would be different the test would be an article nineteen test whether it is a reasonable restriction whether it falls within the eight permissible heads to judgment i think extremely eloquently and very very cogently they bring all of this together and ground it in the development of the full personality and dignity of a human being now this is all very abstract and lovely so you may ask so what and who cares right i am currently no no but the arguments are going on in court arguing wife we struck down as unconstitutional now we had sort of begun the case a while ago and then this privacy judgment came and we are now founding a number of our claims on the judges here had the courage to cite catherine mackinnon and the great dominance feminist and from chicago and the you know the best version of the government's arguments and believe me if you just google them and read them they're just not even as clever as this but however we will argue it in court  full frontal and he said the privacy must not be utilized as a cover to conceal and assert patriarchal mindsets the challenge and this areas to enable the state to take the violation of the dignity of women in the domestic reduces me to a legal subject and a sexual object the foundation of this is also found to some extent in this judgment where they are formed the rights of transgenders  we will see what happens in the national id case where it is mandatory to sort of give your biometrics to the government to keep in a centralized database there are lots of false positives and lots of false negatives the poorest people sometimes are left out many are starving as a result i'm currently actually writing something for the financial times on monday scandal and i don't know how many of you are familiar with that because people who had in that case you know that situation people who did not have ids are being discriminated against and are being left out and particularly in our constitutional law then it you know tends to come from a very visceral place and i think like in engaging with this issue it's become even more clear to me i think it's but it's always somewhat  litigators because you have reasonable officially before the judge because you do a balancing the best balancing that you can yourself that looking at all sides of it it's just you know really important because in india people are sort of you know completely against this national id at the moment right and in the uk in two thousand and nine the law was proposed it was then repealed and now it's being reconsidered so i think you need to sort of think about jurisdictions and thank you onions for having me and thank you wholly and everyone who organizes because yes this is always a wonderful place to take a step back yes reflect on our own practice ye and definitely look forward to more discussions later on when we're having their discussion section of course during lunch so toss you're going to be talking about brazil in this very interesting censorship case that rose  thank you columbia university and daniels for inviting us and all the work the holly and ba had to bring all of us here thank you the case i will bring you today is a clear example how freedom of expression can be hurt by intimidation in brazil i represented for let's empower one of the biggest newspapers in a lawsuit filed by brazilian first lady who was trying to stop a story from being published in february two thousand and seventeen freedom of expression was attacked by  deserve our full attention so i think  okay so as i was present our president has a very low approval rating among the population he has only seven percent of approval so it's very difficult yes the newspapers  reported that the hacker would have promised to blemish the president's name for its alleged involvement in illegal acts on the same day that news article was posted online the first lady filed the suit intimacy was to be protected and the disclosure of the information could cause serious harm so that the the news about the censorship information reported was obtained from public case files which could even be accessed on the internet from some years now brazil has adopt electronic court files so they can be a they are not very easy to be access it we have to make a lot of research to in order to access it and the newspaper made easier so that's the problem that the first lady was our game that it was so easy i was personally working in this case at that time and because of the way things work in brazil we even decided to validate the fact that the those documents had already been in internet we were afraid that matter but much to the contrary because it was evidently in the public interest the subject deserved broad publicity and considering that the brazilian supreme court has been ruling against censorship on the press th decision was bound to be reversed in fact two days later the federal court of appeals reversed the decision irresponsible or abusive the decision crucial for brazilian quartz because it creates a precedent for the protection of freedom of the press if on the one hand th the courts had also reinforced the idea that is up to the newspapers to decide which information the whips curl disclose or publish and when and how they are going to do it and that such a not only serve to guarantee freedom of expression but also reinforce credibility and impartiality of the press so newspapers be prevented from publishing a news article the entire framewor us so much for donating your extra three minutes to our next speaker institute which is the tunisian agency of internet and it's the egg you leave furniture so maybe the question seems to be a little bit stacking or  so this is what maybe make this decision a little bit strange so and before i will in ten minute before before presenting the since two thousand and eleven it adopted its constitution in two thousand and fourteen and the constitution is seen  it's mentioned that submitted to the court three days after by by whom by what we let me translate by the national union council of imams and  the legal quality to sue the to launch the complaint since since it is a section of the whole labor trade union and only the whole they give they they give that an opinion we can find not prejudice whether whether directly or indirectly the professional activities overseen by the climate furthermore the climate failure to submit any proof that the second defendant through the content of courts are making the decision that there is a right is there a right to communications as part of freedom of expression and so umer is going to talk about his case in pakistan that deals with the rights of having access to mobile networks islamabad which i'm going to speak about the background of this case is that pakistan has a robust telecommunications system where there are more than seventy million people who use telecommunication services and the mobile phone has really made phone accessible to people in areas and in segments of society who never could afford a landline so mobile access to mobile phones is not just a it's not just a theoretical issue it is an issue which affects more than seventy million people directly phones more than people who are not so who are more privileged so in that context we filed a petition challenging mobile shutdowns in pakistan and  i'm just getting a hang of how this w i thought i should acknowledge them because as lawyers we never get a chance to do those fancy theatrics in courts unless there are people who are you know brave enough bothered enough or careless enough to give us a public interest petition so you'll notice that this is a marquee group of citizens and the only thing that they really share is that they use a phone they care about it and they are some way in my network so they would be duped into filing a petition actually that's an exaggeration i think i also got duped into filing the petition on their behalf so with these for public phone shut down is something that many of you may never have experienced in your lives our friends from india i think certainly have some experience of what that means it basically means that one day you wake up when your phone is not working and in addition to the fact that it's not working generally at least in pakistan you also don't know exactly how long that's going to be so it could be two hours or it could be two weeks so you can't plan accordingly so we had  mobile shutdown in islamabad we've had it regularly but this time around in two thousand and sixteen we decided to challenge it and one of the things that i found really helpful it was a so so so basically we had a shutdown and we were all very dedicated to digital rights and their research made it very clear to me that there is actually a statutory provision in pakistani law which if we argue it well enough should mean that network disconnections are illegal so based upon that research we went to court the case went on for about two years in  the you know during the proceedings of our case about two weeks after we filed and it became national news one of the telecom companies also join hands with us and this is why when you read the judgement you'll find both mention of both of us so a group of citizens and a very powerful telecom company together we can test at this case for about two years the government also tried to come up with arguments the most prominent argument was that look we're not shutting down phones because we like to we have to do it because we have to do it for national security and as you know the guest speaker yesterday told you national security is one of those claims that is very hard to get around but of course you have to find ways so the government had no evidence to show that shutting down mobile phones makes the world any more safe in fact to the contrary the research that many researchers have done which we present it to the court shows that shutting down mo that network shutdowns are illegal and the government can no longer do it for about three weeks we had the you know we had the glorious era of network shutdowns being illegal all over pakistan but then the government problem you see the real thing that you need to concentrate upon is me right now so so there were three main arguments that we were making one we said this is contrary to  specific provision in pakistan's telecommunications law that provision i will read out in detail but it essentially says that the government has the power to suspend mobile phone services subject to a and what it means is that the government in extremely rare and onion oh controllable circumstances can suspend the enforcement of fundamental rights by the high courts and this has been done only once or twice in twice in pakistan seventy years of history so it's an extremely high threshold that has to be met before this power can be exercised in effect it means that it can't be done so we argue that the network suspensions are illegal because they are uncontrolled to this specific provision of the statute but the broader argument we made and that is a second was that we have a fundamental right of access to telecommunication upon the court to accept the to read the constitution as implying in a right of access to telecommunication more specifically the the right of the freedom of movement we argued that freedom of movement in the free telecom world meant my ability to go and meet somebody and then to do business with them to speak to them to exchange political ideas to do all sorts of things  most of those things we now do through telecommunication so i wouldn't you know i have only come i have had to fly seven thousand miles to come and meet you but i was only able to do it have to shut down my phone they are obliged to give me notice there about their doing what they're doing why they're doing it how long they're gonna do it and there were things were not happening so between these three arguments we  were trying to argue and the court eventually accepted only one of these arguments which is that telecom shutdowns in pakistan are contrary to pakistani telecommunications law and specifically section fifty four so you know i'm gonna read out certain portions of this you're going to now's the time to focus on the slide not me so so there is a specific provision which mentions national security thankfully and ninety six when this laws didn't somebody was you know precocious enough to imagine that this is going to be needed there are three provisions here one which says that the government may authorize any person or persons to intercept and there is a certain condition that has to be met so subsection three you know even if and the court has addressed the argument that if even if you the government were to try and rely upon subsection two which is a broad generic term preference and services operations or functions of a licensed telecommunication provider in the context of national security is exclusively provided under subsection three of subsection of section fifty four and that it can only be invoked if there is a problem of emergency the fundamental rights argument and the consumer rights argument has not been addressed so thankfully it has not been dismissed it's just that the government that the court and i i can see the wisdom behind it that if there is a clear statutory provision why go into interpretation that i think brings me to i had brought a picture of the judge who gave the judgment because after all you know we are all part of the we couldn't have done it so research feeds into a democracy that's one to strategic litigation doesn't always fail and it's not always counterproductive because those things happen but it also works and the third point i want to make i that often works wonders in human rights work so with that you know i'm i'm very grateful to you for the audience and i look forward with the questions okay thank you so much and then our final speaker richard will be talking about a case from the european court of human rights that as i close my eyes and smell out over you i realize i'm at a disadvantage because i am the man who is standing between you and your lunch which i can see at the back and the rest of you can't so i will try and keep this advertising and this is kind of an important thing and it's one of the things which i'm going to explain engages this case and engaging this element of the expanding article ten right freedom of expression bear with me and i'll explain how at the end of some large amount of legally professionally privileged material from the law firm appleby which was dealt with by the international consortium of investigative journalists and the bbc and the guardian published it it's a subject of litigation at the moment in the uk and appleby are arguing amongst other things that the news organizations were breached the uk law of confidence in doing so now the reason why this is relevant is because the article ten case under discuss is directly directly relates to any future appeal this case may have to the european court it because it's because it deals with the extent to which artic ten deals with news gathering speech before speech the actions which go into activities before someone actually utters words the actions which go before communication i put up i'd give you a little a little brief discover a description of what happened in europe over the past calendar year and i had a look at the hugh dock database with those who don't know is the database of echr decisions and i did a little bit of trawling on it it looks like  article ten related cases over the past year i think this list is incomplete i double cross checked with the rather splendid columbia university global freedom of expression database and i found some cases on protection rather interestingly because it cites un soft law enid which is a acquitting interesting development the third one is the latest round in the internal battle between freedom of expression and data protection in europe the last one is is a case about the rights of homosexuals to promote promote their life choice which was constrained by russia and it was appealed up about the extent to which this is a viable proposal but it's in the literature and i think it is reasonably viable to suggest that article ten is treated and when it's related to journalists in a different way by the european court than when it's treated to in relation to other people the the european court emphasizes the watchdog nature of journalists in the society and as a result treats it slightly different so let's assume that that's correct for the moment two questions amongst others arise so what does it mean who does it extend to who does it protect and what does it protect and these are the questions which i think this case actually addresses what are the facts the facts are rather humdrum relates to  g protest in russia in two thousand and six that takes us back to when russia was in the g two thousand and six and ukrainian television journalist was on leave so he doesn't he wasn't actually working for his  journalist he started taking pictures and noting and finding out what was going on some police officers told him to stop on his account he did he proved to them he was a journalist by showing his press card on their account he didn't and he argued with them so they arrested him they took a similar sort of a argument the european court said the russians didn't give either in the court processes or at any stage relevant and sufficient reasons for the interference with the freedom of expression that was involved was not acting as an institutional journalist he wasn't acting for the ukrainian television station who worked for him he was just acting as an ordinary member of the public who saw something interesting and was recording it his intention was thereby to communicate what he recorded to the public so he was acting as a functional journalist we can call that if not an institutional journalist so that's the first point that's why i've chosen it because this case indicates that this special article ten protection extends not only to those who receive a court this is a picture of the price moot chord this is a picture of my investigative journalist students filming the price moot court students as they are waiting to find out who goes to the next line so while i put it in th it's newsgathering it's in a picture of journalists gathering information which might or might not then subsequently be broadcast and that's the second thing i see i've run over i'm gonna whiz a bit and that's the second thing which is relevant here because this case illustrated that article ten applies to acts where journalists are acting in such a way that they never communicate he gathered information but he never communicated it in other words article ten can be seen from this this case to apply to prepare it reacts to communication news gathering now this is the question the head scratch at the end so great article ten applies to people who are not institutional journalists but then you have a boundary problem where do you stop applying it if you apply it to everybody then you have a problem because if everyone is special then no one is special so we have a line and one of the obvious ways of describing where to draw the line about how far this  gathering well as everyone i think in this room knows it's been extended to freedom of information by the european court relatively recently it does look like it's heading towards other activities preparatory to speech too so in the past two thousand and sixteen seventeen i found when the things i found very interesting about this case our friend dirk birkoff has written about this and he said that the court seemed to take into consideration yes they realized that he wasn't officially  assignment but they looked at his intent and his aim to collect the information and ultimately to release it to mass communications which brings us round circle to as i as i looked at all these individual cases we looked at there seems to be some common themes that pull it together one is the vast importance of how technology is changing how the courts are looking at this and the types of cases that are coming through whether or not you have a right of access to information  access to means of communications whether it's web radio whether it's that you have intention to publish information or whether it's the question of getting access to texas that are on a president's wife's cell phone and whether or not you have the right to publish that kind of information so again going back to what toby said yesterday we're in an industrial revolution of the next sort and we'll see this kind of play out over and over again normally at this stage had i been a much stricter disciplinarian and kept us to our ten minutes i would ask a number of follow up questions such as where do you see these cases in these particular ones that you highlighted developing further what would you what kind of strategic litigation are you looking forward to what have been some of the negative cases that you're concealing from us from your respective jurisdictions and finally what do you see in the future good bad or the ugly in terms of cases they're going on so i'm going to leave that for part of the lunchtime discussion but i do want to draw in to members of our audience  toby who could talk just a little bit about what our speaker from afghanistan munir would have talked about but first i want to throw it to our speaker from demas from kenya who shared generously several major cases yesterday including the striking down of criminal defamation in kenya and several others but you have one to share i think that we quite interesting if we could do it briefly on right to privacy could talk from there yeah just turn on the microphone from there yeah that's fine thank you en the right to privacy and consumer rights and and thus it was declared unconstitutional and banned from this era good thank you so much for sharing that and then what toby would like to talk briefly about is that what happens when you're in a ditch in a country that doesn't have a lot of media law cases and how do you make progress in freedom of expression issues in cases and questions that you just before i do that i would like to say it's a it's a real shame that money is not here and sort of for the worst possible reason that he didn't get a visa and i think i can disclose that the upcoming the other thing i'd like to say is i mean i think you know it's really good that afghanistan is somehow being represented here you know most of the countries that have been represented in this meeting so far are larger more powerful more developed countries so i mean i think it's really important that we you know see something from countries like afghanistan and you know i think the popular image of afghanistan is sort of at the basket case with endless war and terrorism and whatever and there are you know it is for the people who live there it's their normal place of residence in a normal country and these things are important for them i talked about two successes and i think you know i mean i don't i can't say but one year would have same case i didn't get to talk to him beforehand or anything but  know that i think that on the judicial side probably not a lot of important things are happening but quite a lot of things are happening on other sides and the two things i'll talk about is the development of safety mechanism in afghanistan so yesterday in my introductory comments i mentioned a little bit about safety developments in two countries which hadn't come to force you know actually afghanistan is a country where things have moved forward quite nicely and what they have done is they have put in place a national coordinating committee which again and this is the real achievement i think that where we're sort of breaking ahead of some of the things that have happened in other countries which involves at the top level and in a multi  all of the players so truly multi stakeholder representation and they meet regularly they operate under a decree so they have a legal you know basis and they basically i mean i you know they're just new so it's less than a year that they've been operating but they sort of you know send instructions and agree you know what police should be doing and doing more profile and more core nation they create an information flow between the different players because you know civil society is doing a lot more monitoring of these cases and you know that isn't connected to the police and investigations so it's too early to judge how successful it would be but it's operational it's going forward and of course you know afghanistan is a country where there's a lot of killings of journalists you know mostly related to the conflict the other thing i'd like to mention about afghanistan is the freedom of information a few years ago they passed their freedom of information actors so it's not an independent body at all and that's a weakness but to my great surprise when they created the first commission it turned out to be a great group of people the officials and the civil society and the civil society guys kind of took it over the the chair the deputy chair and the secretary whole from civil society side it was incredibly active passed you know whether that actually happens and they have been you know against the sort of an almost disbelieving bureaucracy they have really been enforcing this right for example you know the  e government fired a minister and somebody requested the letter firing him and they said not all this is a secret thing and you know and they went to the ministry of justice and they said we want to see the letter so that we can assess the right which they have that power to do they you know the minister of justice gave them the letter they said nothing secret about this it had nothing in it except the firing and they force that to be disclosed they went to the national assembly again which sort of well you know we're not even covered by this law and they said yes you are and so so i mean it's you know it's really encouraging to see these successes out of afghanistan more near has certainly been involved in all of those things i don't know whether he would have talked about them but i will ask him in a few days because i'm going to afghanistan thank you very good thank you so much toby we appreciate those comments so even i am overwhelmed by the smell of food but i so what i would like to do at this moment is to encourage whoever feels faint and needs some nourishment please start with the food but if i would like to open up for questions of anyone would have the panel or where the panelists have with each other yes rich sorry it's about south african open justice because i'm fascinated there because i'm always in stood in filming courts and i might have missed it i apologize if i did but what's the rationale given for the constitutional principle in the common law as you well know they  keeps the judges while judging themselves and a trial so there's the idea of accountability which is a fundamental principle of our constitution another rationale that was mentioned was the therapeutic value of the public witnessing how justice is dispensed and the idea is that you know rather than fostering gossip and speculation about for instance why a particular high profile or rich accused  example might have got a lenient sentence which he originally did get from the trial court you could witness how the judge dispensed justice judicata devid ensue there's that therapeutic value for for the community and then  yes the general the general sort of principle which which has existed since the common law about how how you know this aids a responsive accountable democracy and it's about participation so that you can through the media you learn about the particulars of cases and can contribute to the participatory democracy through debate and so on so there's certainly a lot of and you know it's an important judgment not just because of the comparative survey but also because it does deal with the rationales quite quite quite thoroughly i think okay thank you any other questions from the audience please okay yes all right let's see all right thank you so much and i do want to thank our speakers for their wonderful presentations and their attention to these very very important cases thank you