Applicant New

8/3/2019 Applicant New

http://slidepdf.com/reader/full/applicant-new 1/43

25A

UNIVERSAL FREEDOM OF EXPRESSION

COURT

Digital Media Association of Garunesia

(The Applicants)

Versus.

Government of Garunesia

(The Respondents)

2010

Words used: 4585

MEMORIAL FILED ON BEHALF OF THE

APPLICANT



ii

-Memorial on Behalf of the Applicant-



i

TABLE OF CONTENTS

Contents Pg. no.

LIST OF ABBREVIATIONS [i]

INDEX OF AUTHORITIES [iii]

STATEMENT OF FACTS [viii]

STATEMENT OF JURISDICTION [x]

QUESTIONS PRESENTED [xi]

SUMMARY OF ARGUMENTS [xiii]

ARGUMENTS ADVANCED 1 - 21

PRAYER [xiv]




ii

LIST OF ABBREVIATIONS

1

.

Art.: Article

2

.

Acc.: According

3

.

CJ: Chief justice

4

.

Doc.: Document

5

.

Ex. Example

6

.

Edn.: Edition

7

.

ECHR: European Court of Human Rights

8

.

Govt.: Government




iii

9

.

Hon’ble: Honorable

1

0

.

ICCPR: International Covenant on Civil and Political Rights

1

1

.

ICJ: International Court Of Justice

1

2

.

IHL: International Humanitarian Law

1

3

.

IL: International Law

1

4

.

Int.: Interest

1

5

.

Ltd.: Limited




iv

1

6

.

P. Page

1

7

.

Para: Paragraph

1

8

.

Prof. Professor

1

9

.

Sec.: Section

2

0

.

SC: Supreme Court

2

1

.

UCHR: Universal Court of Human Rights

2

2

UDHR: Universal Declaration of Human Rights




v

2

3

.

UK: United Kingdom

2

4

.

UN: United Nations

2

5

.

UNSC: United Nation Security Council

2

6

.

UNESCO United Nation Education Scientific and Cultural rganization

2

7

.

UOI: Union of India

2

8

.

US: United States

2

9

V.: Versus




vi




vii


Sr. No. INDEX OF SOURCES/AUTHORITIES Pg.1. African Charter on Human and People’s Rights adopted on June 27,

1981 entered into force October 21, 1986.

2,7,18

2. American Convention on Human Rights signed at Inter- American

Specialized conference on Human Rights, San Josi, Costa Rica,

November 22,1969 came into force July 18,1978.

2

3. Amnesty International, Proposed Ugandan media law threatens the

right to freedom of expression, 2001

8

4. Autronic AG v. Switzerland , (1990) 12 EHRR 485. 165. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 78 (1963) 56. Brian Leatherman , ‘Internet Censorship and the Freedom of Speech’

(Washington, DC: American University) December 1999.

8,18

7. Castells v. Spain. 14 E.H.R.R. 445. 168. Smith v. Daily Mail Publishing Co. 443 U.S. 97 (1979) 89. Constitutional Rights Project and Others v Nigeria, (2000) AHRLR

227 (ACHPR 1999)

18

10. David. P. Forsythe, Encyclopedia of Human Rights,(New York:

Oxford University Press) Vol.3; Stephen M Caliendo, Media

4

11. David. P. Forsythe, Encyclopedia of Human Rights,(New York:

Oxford University Press) Vol.3;Charleyn. R. Berens, Index on

Censorship.

6

12. Dinah PoKempner , Briefing Paper : Encryption in the Service of

Human Rights, Human Rights Watch 1997.

10,12

13. Express Newspapers v Union of India, [1959] SCR 12. 814. Frank Lacobucci , Recent Developments Concerning Freedom of

speech and Privacy in the context of Global Communications

Technology ,University of New Brunswick Law Journal 1999

5

15. Gregory A. Garbacz , ‘Gentile v. State Bar of Nevada: Implications for

the Media’ , Washington and Lee Law Review 1992.

8

16. Herrerra-Ulloa v. Costa Rica, 2004 Inter-Am. Ct. H.R., P 113 617. Jo M. Pasqualucci, ‘Criminal Defamation and The Evolution of The

Doctrine of Freedom of Expression in International Law: Comparative

Jurisprudence of the Inter-American Court of Human Rights’,

Vanderbilt Journal of Transnational Law, March, 2006.

6,7

18. Joint Declaration , UN Special Rapporteur on Freedom of Opinion and

Expression, the OAS Special Rapporteur on Freedom of

Expression,2001.

12

19. Ian Brownlie, Guys Goodwin-Gill,Basic ,Documents on Human Rights

,(New Delhi: Oxford University Press) 4th Ed.

1,2,7

20. Lingens v. Austria, (1986) 8 EHRR 407 1621. Marcel Claude Reyes et al. v. Chile, Case 12.108, Report No. 60/03,

Inter-Am. C.H.R., OEA/Ser.L/V/II.118 Doc. 70 rev. 2 at 222 (2003).

14

22. Michael I. Meyerson, ‘Rewriting Near V. Minnesota: Creating a

Complete Definition of Prior Restraint’, Mercer Law Review, Vol. 52, p. 1087, 2001

8

http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=83741





viii

STATEMENT OF FACTS

I

The republic of Garunesia is an idyllic tropical island situated in the Indian ocean. The

island’s economy is dependent on tourism and the export of by-product of coconut trees.

The 70% population was indigenous. In the recent years, the ethnic politics on the island

have taken a violent turn.


http://www.article19.org/

http://www.westlaw.com/Find/Default.wl?rs=WLUK1.0&vr=2.0&DB=780&FindType=Y&SerialNum=1931123793

http://www.article19.org/

http://www.cecc.gov/

http://www.fact-index.com/



ix

II

On 5th July 2010 a group of 10 heavily armed men and women forced their way into the

windflower Garunesia’s premier tourist resort. They quickly established themselves at

strategic locations and sealed of all entry and exit points to the hotel.

III

As soon as first gunshot was heard, the guest at the hotel hustled into various rooms by

the staff to avoid risking their lives. A few guests recorded the insurgents storming in the

hotel and they quickly uploaded these clips to the micro-blogging site mo.tv and

vigorously engaged in various conversations with global audience.

IV

The insurgent established a command post in the main lobby of the hotel, where they set

up a communication center with video cameras and broadcasting and internet facilities.

The insurgent group broadcast and webcast live negotiations with Government. The

negotiation broke down as this news filtered into the insurgent communication center.

V


http://www.scienceclarified.com/



x

The Govt. then passed certain resolutions which were not complied by satellite mobile

phone operators and both opensecrets.org and mo.tv stating that they were hosted in

Iceland and does not subject to the rules of Garunesia.

VI

Frustrated with these reactions Govt. of Garunesia promulgated an executive order.

The Govt. used its powers under the executive ordinance to order that mo.tv and

opensecrets.org should be filtered or banned by all internet service providers in

Garunesia.

VII

The Govt. has authorized Ms. Ali, to embed herself with the Govt. troops. The Govt.

troops stormed the Windflower, where certain insurgent and occupants died including

Obi Oko, Garunesia’s 3 times Oscar winning actor. The Govt. then banned Ms. Ali and

news Garunesia from disseminating images of any of the corpses. The relatives of 10

occupants obtained an injunction against the dissemination from District Court XII of

Garunesia.

VIII

The Govt. in August 2010 makes the executive order permanent. The law named “Digital

Media and Protection of Public Safety Act and pursuant to law prescribed a form for

seeking internet content licence.




xi

IX

Mobile phone providers, internet service providers and broadcasters agitated by law’s

broad scope and criminal prosecution challenged the law at Universal Court of Human

Rights that it violates Freedom of Speech and Expression under Art. 19 of UDHR and

challenging the Govt. ban and injunction issued by District Court XII.




xii

STATEMENT OF JURISDICTION

The Agents on behalf of the Applicants have endorsed there pleadings before the chamber of

Human Universal freedom of Expression Court under Article 26 R/W Article 28 of International

Court of Justice. Under Article 26 the court may from time to time form one or more chambers ,

composed of three or more judges as the court may determine , for dealing with particular

categories of cases.

Since in State of Garunesia there is no written constitution and no domestic remedies or rights as

well both the parties Digital Media Association of Garunesia (The Applicants) and Government

of Garunesia (The Respondents) have decided to submit their contentions in front of a fictional

court that is Universal Court of Human Rights and substitute jurisdiction of all other regional

courts.




xiii




xiv

ISSUES RAISED

1. WHETHER THE LAW NAMED AND STYLED AS DIGITAL MEDIA AND

PROTECTION OF PUBLIC SAFETY ACT, 2010 WHICH MAKES THE

EXECUTIVE ORDER PERMANENT IS VIOLATIVE OF THE PROVISIONS OF

ARTICLE 19 OF THE UDHR?

1.1 PROVISIONS OF UDHR & OTHER CONVENTIONS VIS-À-VIS DIGITAL

MEDIA AND PROTECTION OF PUBLIC SAFETY ACT, 2010.

1.2 UNJUSTIFIED LEGISLATIVE PRIOR RESTRAINT IS NOT AT ALL

AMENABLE TO THE PROVISIONS OF ARTICLE 19 OF UDHR.

1.3 THE REQUIREMENT IMPOSED BY THE VIRTUE OF THE NEW LAW

MANDATING ALL THE TELECOMMUNICATIONS AND INTERNET

SERVICE PROVIDERS TO LOCATE THE PHYSICAL HARDWARE IN

GARUNESIA AND PROVIDING THE GOVERNMENT WITH ENCRYPTION

CODE USED TO SECURE THE DATA IS VIOLATIVE OF ARTICLE 19 OF

THE UDHR.




xv

2. WHETHER THE ACTION OF GOVERNMENT BANNING MS. ALI AND NEWS

GARUNESIA FROM DISSEMINATING IMAGES OF ANY OF THE CORPSES

AND THE INJUNCTION ISSUED BY THE DISTRICT COURT XII IS

JUSTIFIED

2.1 CENSORSHIP IN FORM OF INJUNCTIONS AND PRIOR RESTRAINTS

AMOUNTS TO VIOLATION OF FREEDOM OF SPEECH AND EXPRESION

UNREASONABLE.




xvi

SUMMARY OF ARGUMENTS


PROTECTION OF PUBLIC SAFETY ACT, 2010 WHICH MAKES THE EXECUTIVE

ORDER PERMANENT IS VIOLATIVE OF THE PROVISIONS OF ARTICLE 19 OF THE

UDHR?

1.1 PROVISIONS OF UDHR & OTHER CONVENTIONS VIS-À-VIS DIGITAL

MEDIA AND PROTECTION OF PUBLIC SAFETY ACT, 2010.

The agent humbly submits before the universal court of Human Rights the impugned act

styled as Digital Media and Protection of Public Safety Act , 2010 which makes the

executive order permanent is acting as a prior restraint and is in contravention of article

19 of UDHR and various rights as guaranteed under other international conventions.

1.2 UNJUSTIFIED LEGISLATIVE PRIOR RESTRAINT IS NOT AT ALL

AMENABLE TO THE PROVISIONS OF ARTICLE 19 OF UDHR.

The unjustified legislative action by the government of Garunesia is infringing the rights

of freedom of speech and expression of not only of media but also the right to seek

information of the people of Garunesia hence it is not at all amenable to the provisions of

Article 19 of UDHR and hence unconstitutional.




xvii

1.3 THE REQUIREMENT IMPOSED BY THE VIRTUE OF THE NEW LAW

MANDATING ALL THE TELECOMMUNICATIONS AND INTERNET

SERVICE PROVIDERS TO LOCATE THE PHYSICAL HARDWARE IN

GARUNESIA AND PROVIDING THE GOVERNMENT WITH ENCRYPTION

CODE USED TO SECURE THE DATA IS VIOLATIVE OF ARTICLE 19 OF

THE UDHR.

The law passed by the Government of Garunesia mandating all the telecommunicationsand internet service providers to locate the physical hardware in Garunesia and asking for

encryption code is violative of article 19 of UDHR. As computer code is also a protected

speech hence is under the ambit of article 19 of UHDR. Hence Government cannot

arbitrarily impose such restriction on the telecommunication and internet service

providers.


GARUNESIA FROM DISSEMINATING IMAGES OF ANY OF THE ORPSES AND

THE INJUNCTION ISSUED BY THE DISTRICT COURT XII IS JUSTIFIED?

The Agent humbly submits before the Universal Court of Human Rights that the action

of Government banning Ms. Ali and News Garuneisa from disseminating images of any

of the corpses is not justified as it infringes the basic right of seeking and imparting




xviii

information and is violative of Article 19 of UDHR which guarantee freedom of speech

and expression regardless of frontiers.

2.1 CENSORSHIP IN FORM OF INJUNCTIONS AND PRIOR RESTRAINTS

AMOUNTS TO VIOLATION OF FREEDOM OF SPEECH AND EXPRESION

UNREASONABLE.

This is clearly a pre censorship imposed on the popular news website of Garunesia that is

News Garunesia and is not reasonable under article 19 of UDHR.




[1]

ARGUMENTS ADVANCED


PROTECTION OF PUBLIC SAFETY ACT, 2010 WHICH MAKES THE EXECUTIVE

ORDER PERMANENT IS VIOLATIVE OF THE PROVISIONS OF ARTICLE 19 OF

THE UDHR?

1.1 PROVISIONS OF UDHR & OTHER CONVENTIONS VIS-À-VIS DIGITAL MEDIA

AND PROTECTION OF PUBLIC SAFETY ACT, 2010.

1.1.1 It is humbly submitted before the Universal Court of Human Rights that the impugned

Act making the Executive Order passed by the Govt. of Garunesia permanent is violative of

Article 19 of Universal Declaration of Human Rights.1

1.1.2 According to Article 19 of UDHR 2 which states that everyone has the right to freedom of

opinion and expression; this right includes freedom to hold opinion without interference and to

seek, receive, and impart information and ideas through any media and regardless of frontiers3

.

1.1.3 The aforesaid provision is crystal clear in terms of freedom of opinion and expression

and it also constitutes the cornerstone of any democratic society and thereby provides a solid

edifice and fundamental basis for full fledged development of any democratic society. Indeed,

the right that guarantees freedom of expression is widely seen as underpinning all other human

rights and democratic freedoms

4

but if the individual does not have the right to freely seek,

1 Ian Brownlie, Guys Goodwin-Gill,Basic , Documents on Human Rights ,(New Delhi: Oxford University Press) 4th

Ed. p.21.

2 Art.19, UDHR, adopted by the UN General Assembly on 10 December 1948, Resolution 217A(III).

3 See, Supra 1.




[2]

receive and impart their ideas and opinions; they will also not be able to benefit from their

other human rights.

1.1.4 The right to freedom of expression and opinion also has a corollary, namely freedom of

the press, which is normally perceived as the individual’s right to freedom of expression

extended to the media.5

1.1.5 The International Covenant on Civil and Political Rights (ICCPR), a treaty, ratified by

over 145 States, imposes formal legal obligations on States Parties to respect a number of the

human rights set out in the UDHR.6 Article 19 of the ICCPR guarantees the right to freedom

of opinion and expression in terms which are analogous to the one found in Article 19 of the

UDHR .7 Guarantees of freedom of expression are also found in all three major regional human

rights systems i.e. in Article 10 of the European Convention for the Protection of Human

Rights8 and Fundamental Freedoms,9 Article 13 of the American Convention on Human

Rights,10 and Article 9 of the African Charter on Human and Peoples’ Rights.11

4 Mogens Schmidt, CONFERENCE ROOM PAPER # 6Limits to the restrictions to freedom of expression – Criteria and Application.

5 Prateek Shanker Srivastava , Fourth Estate’ in the Constitutional Ambit-Analyzing Free Speech under Democracy, p.2.

6 UN General Assembly Resolution 2200A (XXI) of 16 December 1966, in force 23 March 1976.

7

Sandy Ghandhi, ‘ International Human Rights Documents’,( Great Britain:Oxford University Press),6th

Edn.8 Ian Brownlie, Guys Goodwin-Gill, Basic Documents on Human Rights ,(New Delhi: Oxford University Press) 4th

Ed. p.21.

9 Adopted 4 November 1950, in force 3 September 1953.

10 Adopted 22 November 1969, in force 18 July 1978.

11 Adopted 26 June 1981, in force 21 October 1986.




[3]

1.1.6 Furthermore, It is submitted that there is a paradigm shift in the notions of state

sovereignty also as the respect for state sovereignty does not trump these aforesaid rights

anymore.

1.1.7 Customary international law will always revolve around how broadly or narrowly one

should interpret a custom, but one legitimate interpretation is that custom allows intervention

in the affairs of a state in order to prevent widespread suppression of the freedom of speech12.

So there is wearing a way of state sovereignty when it comes to protection of rights such as

freedom of speech and expression etc.

1.1.8 Hence, in the present case the Govt. of Garunesia by making the Executive Order

permanent under the said Act which provides for manifold requirements to be complied with

amongst others is nothing but an arbitrary and unbridled exercise of legislative powers as the

same foists upon in an ex-parte manner few contingencies which are very far-fetched in nature

and it at the same time also fails to pay heed towards the globally accepted norms and rights

qua freedom of expression and opinion.

1.2 UNJUSTIFIED LEGISLATIVE PRIOR RESTRAINT IS NOT AT ALL AMENABLE TO

THE PROVISIONS OF ARTICLE 19 OF UDHR.

1.2.1 The provision requiring the internet content providers to obtain a license, permit or other

authorization in order to legally engage in publishing can be seen as a legislative prior restraint

12 William Magnuson, THE RESPONSIBILITY TO PROTECT AND THE DECLINE OF SOVEREIGNTY: FREESPEECH PROTECTION UNDER INTERNATIONAL LAW, Vanderbilt Journal of Transnational Law, Vol. 43, No. 2, 2010.




[4]

whereby the Govt. has in toto neglected the provisions of UDHR and other Conventions.

These Govt. restrictions typically come in the form of administrative or judicial regulations.13

1.2.2 A prior restraint is an administrative or judicial order prohibiting the publication or

communication of specified statements before publication or communication has occurred.14

Prior restraint by way of legislation has been considered as a most serious and the least

tolerable infringement on the right of freedom of speech and expression of an individual and it

has been rightly stated that15 a prior restraint, by contrast and by definition, has an immediate

and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after

publication "chills" speech16, prior restraint "freezes" it at least for the time.17

1.2.3 As can be inferred from the commentaries of Blackstone “the liberty of the press is

indeed essential to the nature of free state but this consists in laying no previous

restraints upon publication and not in freedom from censure for criminal matters when

published”.18

13 Available at http://www.cecc.gov/pages/virtualAcad/exp/exppriorrestraints.php visited on 18th october

2010

14

Jeffrey Matrullo, People v. Bryant and Prior Restraint: The Unsettling of a Settled Area of Law Connecticut Public Interest Law Journal(*347), 2005.

15 Available at http://www.fact-index.com/f/fr/freedom_of_speech.html visited on 6th October 2010.

16 Neb. Press Ass'n v. Stuart , 427 U.S. 539, 559 (1976)

17 A. Bickel, The Morality of Consent (New Haven: Yale University Press,. 1975)

18 Sandy Ghandhi, ‘ International Human Rights Documents’,( Great Britain:Oxford University Press),6th Edn




[5]

1.2.4 Media is not only a medium to express one’s feelings, opinions and views but it is also

responsible and instrumental for building opinions and views on various topics of regional,

national and international agenda.19

1.2.5 Any prior restraint on expression comes to this Court with a "heavy presumption" against

its constitutional validity.20 Respondent thus carries a heavy burden of showing justification

for the imposition of such a restraint. The Supreme Court has affirmed this presumption

repeatedly and has relied on this presumption to justify the quick disposal of prior restraints.

21The damage can be particularly great when the prior restraint falls upon the communication

of news and commentary on current events.22

1.2.6 Licensing schemes have been criticized and has been considered as an onerous

infringement on freedom of speech and expression. It would mean that the Govt. directly

controls the amount, structure, distribution, and coordination of all publishing in the country.

No one can publish their opinions without first receiving permission from the Govt.. This will

not only violate the freedom to impart information regardless of all frontiers but would also

violate freedom to receive information.23

1.2.7 The Internet, as the most visible structure of international communications technology,

has fundamentally altered methods of accessing and disseminating information, with profound19 David. P. Forsythe, Encyclopedia of Human Rights,(New York: Oxford University Press) Vol.3; Stephen M

Caliendo, Media. p.477.

20

Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 78(1963); Walker v. City of Birmingham, 388 U.S. 307, 315 (1967). Freedman v. Maryland , 380 U.S. 51, 57, 58(1965).

21 Vance v. Universal Amusement Co., 445 U.S. 308, 317 n. 16 ; Nebraska Press Ass'n v. Stuart , 427 U.S. 539;Southeastern Promotions v. Conrad, Ltd., 420 U.S. 546, 558 (1975).

22 Ibid.

23 Available at http://www.cecc.gov/pages/virtualAcad/exp/exppriorrestraints.php visited on 29th october 2010




[6]

social, political and legal implications24. The Internet is "a true 'marketplace of ideas', in which

individuals around the globe come together to organize, debate, and share information

unrestricted by geographical distances or national borders.25" Today regulation of internet

content has become a serious issue on the global level because in way domestic laws of a

particular country restricting freedom of speech and expression on internet is violating the

Human rights of internet users all around the world. For example, if citizens of one country are

prohibited from discussing political issues critically online, then not only are their rights

infringed upon, but also the right of others around the world to "seek and receive" that

information is directly implicated. Similarly, a country's efforts to block certain content fromoutside its border implicate the right of those in other countries to "impart" the information. A

new rule is called for and it is that only that content can be prohibited which all or virtually all

countries agree is prohibited26.

1.2.8 Further by imposing a sanction that in case of violation of the said provision the

defaulters will be imprisoned and would have to pay fine27, there are plenary chances that the

Govt. of Garunesia and various public officials other powerful individuals using these laws as

a weapon to intimidate the media from revealing corrupt practices or publicizing incriminating

information28 and thus, Journalists and the media may be pressured not to write or broadcast

24 Frank Lacobucci , Recent Developments Concerning Freedom of speech and Privacy in the context of Global Communications Technology ,University of New Brunswick Law Journal 1999 p.189

25 Ann Beeson, Privacy in Cyberspace: Is Your E-mail Safe from the Boss, the SysOp, the Hackers, and the Cops?,

American Civil Liberties Union (visited 23 october 2010) <http://www.aclu.org>.

26 Available at http://gilc.org/speech/report Visited on 12th October 2010

27 Refer clarifications II as issued on 6 October 2010.

28Jo M. Pasqualucci, ‘Criminal Defamation and The Evolution of The Doctrine of Freedom of Expression inInternational Law: Comparative Jurisprudence of the Inter-American Court of Human Rights’, Vanderbilt




[7]

news because its publication could result in a criminal prosecution. This self-censorship of the

media will negatively affect the public's right to information29.

1.2.9 The Inter American Court of Human Rights has also adopted the standard set by the

European Court of Human Rights that freedom of expression must be guaranteed not only for

the dissemination of the information and ideas that are favorably received or considered

inoffensive or indifferent but also for those that shock, concern or offend the State or any

sector of the population30. In essence, freedom of expression is non-existent if only statements

that are acceptable to the Govt. or the majority of citizens are allowed to be expressed. All

facts and opinions must be permitted, provided that they are not specifically restricted by the

governing treaty.31

1.2.10 In the case of Nigeria Media Rights Agenda and Others v Nigeria 32 it was contended

as under:

Freedom of expression is a basic human right, vital to an individual's personal development,

his political consciousness, and participation in the conduct of public affairs in his country.

The problem at hand in the particular case was whether the decrees requiring the registration of

newspapers, and prohibiting many of them, violate article 9.33 The court stated that asking for

Journal of Transnational Law, March, 2006.

29 David. P. Forsythe, Encyclopedia of Human Rights,(New York: Oxford University Press) Vol.3;Charleyn. R.Berens, Index on Censorship.

30

Herrerra-Ulloa v. Costa Rica, 2004 Inter-Am. Ct. H.R., P 113;Scharsach and News Verlagsgesellschaft v. Austria, 2003 Eur. Ct. H.R. 596, P 29; Sunday Times v. United Kingdom, 2 Eur. Ct. H.R. 245, P 65 (1979).

31 See, Supra 26.

32 Nigeria Media Rights Agenda and Others v Nigeria, (2000) AHRLR 200 (ACHPR 1998)

33 African Charter on Human and People’s Rights; Lan Brownlie, Guys Goodwin-Gill, Basic Documents on Human Rights , (New Delhi: Oxford University Press) 4th Ed. p.730.


http://findarticles.com/p/articles/mi_hb3577/is_2_39/





[8]

minimal registration fees is not a major issue of more concern is the total discretion and

finality of the decision of the Registration Board, which effectively gives the Govt. the power

to prohibit publication of any newspapers or magazines they choose. This invites censorship

and seriously endangers the rights of the public to receive information, as protected by Article

9 (1). There has thus been a violation of Article 9 (1).

1.2.11 It was also held in the case of Reno v ACLU 34 that the indecent speech on the Internet

is entitled to the same full First Amendment protection as other indecent speech. The Court

was especially concerned that the CDA, in denying minors access to indecent speech,

effectively suppressed a large amount of information that adults had a constitutional right to

receive35.

1.2.12 In the celebrated case of Near v Minnesota36 the Court ruled that a Minnesota law that

permitted the Govt. to obtain a court order abating defamatory newspapers as a "nuisance"

created an unconstitutional prior restraint. 37 Considering the constitutional interaction of the

press and the Govt., the Court stated that the fundamental purpose underlying the Press Clause

was to prevent prior restraints on the press.38

34 Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).

35 Brian Leatherman , ‘Internet Censorship and the Freedom of Speech’ (Washington, DC: American University)December 1999.

36 Near v Minnesota , 283 U.S. 697 (1931)

37 Michael I. Meyerson, ‘Rewriting Near V. Minnesota: Creating a Complete Definition of Prior Restraint’, Mercer Law Review, Vol. 52, p. 1087, 2001

38 Gregory A. Garbacz , ‘Gentile v. State Bar of Nevada: Implications for the Media’ , Washington and Lee Law Review 1992.











[9]

In Smith v. Daily Mail Publishing Co., 39 the Supreme Court decided another case regarding

the pub-lication of lawfully obtained information in contravention to a state statute forbidding

such publication. In Daily Mail, the Court held that a state may not punish the publication of

lawfully obtained information unless punishment is necessary to further a state interest of the

highest order .40

1.2.13 In Express Newspapers v Union of India41 the Supreme Court held that a law which

imposes prior restraint or curtail the circulation or prevents newspapers from being started or

require the Govt. to seek Govt. aid in order to survive was violative of Art 19 (1) (a) of the

Constitution of India.

1.2.14 It is submitted that any kind of licensing regulations have been criticized and

discouraged by all the national and international organizations working for the benefit of

freedom of speech and information whether it has been the stringent laws of china42 restricting

freedom of speech and expression more arduously or the recent Uganda bill 43 which proposes

mandatory registration and licensing of newspapers by a Govt.-controlled Media Council. The

Human Rights Committee, the body of independent experts responsible for monitoring states’

implementation of the ICCPR, has stated in its General Comment on Article 19 that, “when a

State party imposes certain restrictions on the exercise of freedom of expression, these may not

put in jeopardy the right itself”.44

39 443 U.S. 97 (1979)40

Supra 14

41 Express Newspapers v Union of India, [1959] SCR 12.

42 Available at http://www.cecc.gov/pages/virtualAcad/exp/exppriorrestraints.php Visited on 13th October 2010

43 Amnesty International, Proposed Ugandan media law threatens the right to freedom of expression, 2001

44 Sandy Ghandhi, ‘ International Human Rights Documents’,( Great Britain:Oxford University Press),6th Edn p.188.




[10]

1.2.15 In the face of aforesaid submissions, it can be said that the arduous and unjustified stand

of the Republic of Garunesia in perpetrating the prior restraints is dehors the provisions of not

only Article 19 of UDHR but also other conventions and international treaties.

1.3 THE REQUIREMENT IMPOSED BY THE VIRTUE OF THE NEW LAW MANDATING

ALL THE TELECOMMUNICATIONS AND INTERNET SERVICE PROVIDERS TO

LOCATE THE PHYSICAL HARDWARE IN GARUNESIA AND PROVIDING THE

GOVT. WITH ENCRYPTION CODE USED TO SECURE THE DATA IS VIOLATIVE OF

ARTICLE 19 OF THE UDHR.

1.3.1 It is submitted that the mandate of making available to the Govt. of encryption code

under the Digital Media and Protection of Public Safety Act, 2010 is violative of Article 19 of

UDHR under following grounds inter alia:

o Firstly, the said law invades and infringes upon the very essential and one of the basic

right of expression and dissemination of information through any means and mode as is

envisaged under Article 19 of the UDHR.

o Secondly, the law in itself is unlawful as the same does not in clear terms specify the core

reasons and necessity for imposing such a requirement and the same has not at all left the

space to exercise the right to expression with some reasonability.

o Thirdly, the law is also unlawful as the same has failed to maintain a balance between the

reasonable restrictions and most essential rights of the telecommunications and internet service

providers.




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1.3.2 The phrase “Data Encryption” needs to be defined. Here, the term "data" simply refers to

information and Encryption is the process of taking information or data and translating it into a

code.45

1.3.3 It is submitted that most of the nations around the world are fundamentally erected upon

notions of civil liberties such as privacy, freedom of speech, freedom of association, and

freedom of expression. These individual freedoms by their very nature provide a check on

Govt. action. The Govt. simply cannot decide whether it will or will not honor these values but

on the contrary it must. Therefore, the Govt. is left with the problem of balancing the various

liberties against each other 46.

1.3.4 The subject matter which is facing restriction in the instant case is the Internet, a medium

that enables swift and inexpensive global communication between individuals from every

point on earth and which promises to destroy the ability of abusive regimes to silence their

people, hide their atrocities, and blockade the truth47.

1.3.5 The acquisition by the Govt. by mandating the encryption code is a powerful temptation

to conduct an abusively expansive search. In this regard it is submitted that Encryption is more

than a shield for human rights activists and it is both a method and a subject of communication

that is fully protected by the right of free expression, which is set forth not only in the United

States Constitution but also in Article 19 of the International Covenant on Civil and Political

Rights. Under the Covenant, the communication of encryption programs to others, regardless

45 Available at http://www.scienceclarified.com/dispute/Vol-2/Does-private-strong-encryption-pose-a-threat-to-society.html visited on 4th October 2010.

46 Ibid.

47 Dinah PoKempner , Briefing Paper : Encryption in the Service of Human Rights, Human Rights Watch 1997




[12]

of frontiers, cannot be subject to a blanket ban, but may be restricted only as "necessary in a

democratic society" for important Govt. interests such as national security or public safety,

narrowly construed.

1.3.5 Nevertheless, these rights are limited by Article 29 of UDHR which permits restrictions

"solely for the purpose of securing respect for the rights and freedoms of others and of meeting

the just requirements of morality, public order and the general welfare in a democratic

society." But nowhere post siege the Govt. of Garunesia has illumined upon the aforesaid

requirements in the said law and hence, on this count of being suffering from the vice of

absentia of plausible grounds and extenuating circumstances the law requires to be declared

violative of Article 19 of the UDHR.

1.3.6 It is further submitted that the rights set forth in the Universal Declaration "may in no

case be exercised contrary to the purposes and principles of the United Nations" 48. In this

regard it is submitted that there is an Internet policy and regulation, a set of minimum

principles (these principles are adopted by the Internet Governance Forum as the guiding

principles for any form of Internet regulation, whether at the national or at the

international level) which was adopted last year by the special rapporteurs on freedom of

expression of the United Nations, the Organisation of American States and the Organisation

for Security and Cooperation in Europe and the Organisation wherein a Joint Declaration, they

stated49 amongst others that restrictions on Internet content, whether they apply to the

dissemination or to the receipt of information, should only be imposed in strict conformity

with the guarantee of freedom of expression, taking into account the special nature of the

48 Available at www.article19.org visited on 2nd October 2010.

49 Joint Declaration , UN Special Rapporteur on Freedom of Opinion and Expression, the OAS Special Rapporteur on Freedom of Expression,2001.




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Internet. The perusal of this principle signifies nothing but the only aspect that even the said

mandate of providing encryption code is not in tune with the aforementioned principle qua

internet regulation.

1.3.7 Hence, for example even if it’s a speech expressed via the medium of the Internet is no

less speech and if it is encoded it deserves the full protection of both international and

constitutional law50. The freedom of speech guaranteed by the Constitution embraces at the

least the liberty to discuss publicly all matters of public concern without previous

restraint or fear of subsequent punishments51.

1.3.8 In United States v. Progressive Inc.52, the United States Court of Appeals for the Seventh

Circuit dismissed the Govt.'s suit against The Progressive, a newspaper that was seeking to

publish technical information regarding how to construct an atomic bomb, because similar

information regarding the construction of atomic bombs had already been published and was

freely available. The Govt. had argued that the release of such technical information posed a

threat to national security but the Seventh Circuit, in dismissing the appeal, thought otherwise.

1.3.9 Therefore, in the backdrop of the aforesaid reasons and grounds it would not be

acceptable to merely invoke a general concern with national security or public safety as a

justification to limit the rights by seeking encryption code rather the specific limitation would

have to be weighed to test if it is the least restrictive means of securing the Govt. interest.

50 See, Supra 43

51 Thornhill v. Alabama, 310 US 88 (1940)

52 United States v. Progressive Inc.,610 F.2d 819; Protecting the Core Values of the First Amendment in an Age of New Technologies: Scientific Expression vs. National Security by E. John Park available at<http://vjolt.student.virginia.edu>.




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GARUNESIA FROM DISSEMINATING IMAGES OF ANY OF THE CORPSES AND

THE INJUNCTION ISSUED BY THE DISTRICT COURT XII IS JUSTIFIED.

2.1.1 It is humbly submitted before the Universal Court of Human Rights that the banning of

dissemination of images and the subsequent injunction Order passed by the District Court is




[15]

violative of the right to seek, receive and impart information as enumerated in Article 19 of

UDHR 53.

2.1.2 As it can be inferred from the rights engrafted under Article 19 of UDHR and various

other international agreements that banning of dissemination of images violate not only the

right of the person imparting the information but also the right of the individuals who are

entitled to receive that information and hence, the violation is twofold in nature.

2.1.3 In a modern democracy, a very significant part of the totality of information held by

“others” is in the hands of the state. That body of information is produced collected and

processed using public resources and it ultimately belongs to the public. The government holds

the information as a custodian for the public and is under a general obligation to make it

available save when a compelling public or private interest dictates otherwise. As such, the

right to access information held by public bodies is an integral part of the right to freedom of

expression—a right that includes in the words of this Court, ‘the collective right to receive any

information whatsoever’.54

2.1.4 In the celebrated case of Claude v. Chile55 the Court concludes that Article 1356 of the

Convention, which specifically establishes the rights to ‘seek’ and ‘receive’ ‘information’,

protects the right of all persons to request access to information held by the State, with the

exceptions permitted by the restrictions regime of the Convention. As a result, this Article

53 Sandy Ghandhi, ‘ International Human Rights Documents’,( Great Britain:Oxford University Press),6th Edn

54 Available at http://www.article19.org/pdfs/analysis/georgia-foe-guide-april-2005.pdf visited on 4 Oct , 2010.

55 Marcel Claude Reyes et al. v. Chile, Case 12.108, Report No. 60/03, Inter-Am. C.H.R., OEA/Ser.L/V/II.118Doc. 70 rev. 2 at 222 (2003).

56 See, Supra 49




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supports the right of persons to receive such information and the positive obligation on the

State to supply it, so that the person may have access to the information or receive a reasoned

response when for ground permitted by the Convention, the State may limit access to it in the

specific case.

2.1.5 In the instant case while the Government authorized Ms. Salma Ali Garunesia’s popular

journalist to embed herself with the government troops and there were no restrictions imposed

on her in the authorization issued.57 Hence, after permitting Ms. Ali to record the event

occurred, during the process banning them clearly violates not only the rights of Ms. Salma Ali

and news Garunesia but also the rights of the people of Garunesia to be informed about the

events happening in Windflower, Garunesia’s premier tourist resort.

2.1.6 The European Court of Human Rights58 has rightly stated in Handyside v. United

Kingdom59 that Freedom of expression constitutes one of the essential foundations of a

democratic society, one of the basic conditions for its progress and for the development of

every man. It is applicable not only to ‘information’ or ‘ideas’ that favorably received or

inoffensive or as a matter of indifference, but also to those that offend, shock, or disturb the

State or any sector of the population. Such are the demands of pluralism, tolerance and

broadmindedness without which there is no ‘democratic society’.

57 Para 14 , Statement of Facts, Oxford-India Media Law Moot Court competition 2010

58 See, Supra 52.

59 Handyside v. United Kingdom , (1976) 1 EHRR 737




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2.1.7 The European court has also held that Article 1060 applies not only to the content of

expression, but also to the means of transmission or reception.61

2.1.8 It was also held by Inter-American Court of Human Rights where it was stated that “it is

the mass media that make the exercise of freedom of expression a reality62. In Castells v.

Spain63 it was held that ‘not only does the press have the task of imparting such information

and ideas but the public also has a right to receive them otherwise, the press would be unable

to play its vital role of ‘public watchdog’. In Naraindas v. State of Madhya Pradesh,64 it was

stated that It is our firm belief, any conviction which constitutes one of the basic values of a

free society to which we are wedded under our Constitution, that there must be freedom not

only for the thought that we cherish, but also for the thought that we hate.

2.1.9 In the present problem the government has banned Ms. Ali and News Garunesia from

disseminating images of any of the corpses. This indeed violates the media’s right to express

its opinion regarding the event occurred in the resort. The coverage of Ms. Salma Ali not only

includes the images of the insurgents but also of Obi Oko Garunesia’s 3-time Oscar winning

actor and a prominent member of the settler group.65 This information is very important for the

people residing there. The government cannot ban the dissemination of images by looking at

60 ECHR, Sandy Gandhi, ‘ International Human Rights Documents’,( Great Britain:Oxford University Press),6th Ed . 61

Autronic AG v. Switzerland , (1990) 12 EHRR 485.62 Compulsory Membership in an association Prescribed by law for the practice of journalism, Advisory opinion

OC-5/85 of 13 Nov 1985, Series A, No.5 Para 34.

63 Castells v. Spain. 14 E.H.R.R. 445.

64 Naraindas v. State of Madhya Pradesh, 1974 (3) SCR 624, 650.

65 Para 14 , Statement of Facts, Oxford-India Media Law Moot Court competition 2010




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one side of the coin and ignoring the other equally important side of the coin, the people have

the right to receive information and the right to know.

2.1.10 As rightly stated it the case of Lingens v. Austria66 , it was held that Penalties against

the press for publishing information and opinions concerning matters of public interest

are intolerable except in the narrowest of circumstances owing to their likelihood of

"deterring journalists from contributing to public discussion of issues affecting the life

of the community".67

2.1.11 Thus, the action of banning by the Government of Garunesia and the subsequent

passing of Injunction Order by the District Court suffers from the vice of total non-application

of mind and is devoid of any convincing and justified reasons.

2.2 CENSORSHIP IN FORM OF INJUNCTIONS AND PRIOR RESTRAINTS AMOUNTS

TO VIOLATION OF FREEDOM OF SPEECH AND EXPRESION UNREASONABLE.

2.2.1 Censorship by way of ‘injunctions’ and ‘prior restraints’ is the most atrocious

infringement of freedom of speech and expression.

2.2.2 In a modern sense censorship consists of any attempt to suppress information, points of

view, or method of expression such as art or profanity. Censorship is commonly used by social

groups, organized religions, corporations and Governments.

66 Lingens v. Austria, (1986) 8 EHRR 407

67 See,Supra 61, para. 45.


http://www.wordiq.com/definition/Art

http://www.wordiq.com/definition/Profanity

http://www.wordiq.com/definition/Organized_religion

http://www.wordiq.com/definition/Corporation

http://www.wordiq.com/definition/Government

http://www.wordiq.com/definition/Art

http://www.wordiq.com/definition/Profanity

http://www.wordiq.com/definition/Organized_religion

http://www.wordiq.com/definition/Corporation

http://www.wordiq.com/definition/Government



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2.2.3 Censorship can be explicit, as in laws passed to prevent information being published or

propagated as in Australia, China, or Saudi Arabia where certain Internet pages are not

permitted entry or it can be implicit, taking the form of intimidation by government or even by

popular censure, where people are afraid to express or support certain opinions for fear of

losing their lives, or their jobs, position in society, or in academia, their academic credibility.68

2.2.4 Making publishing of any material or banning the media to impart information or

granting injunction to stop media has resulted in self censorship which is the act of censoring

or classifying one’s own work out of fear or deference to the sensibilities of others without an

authority directly pressuring one to do so. 69 And due to imposing of such restraints there will

be instances where valid claims and opinions are suppressed as a result of these laws.

2.2.5 In a case of Nigeria Constitutional Rights Project and Others v Nigeria 70 it was stated

that Freedom of expression is a basic human right vital to an individual's personal development

and political consciousness, and participation in the conduct of public affairs in his country.

Under the African Charter 71, this right comprises the right to receive information and express

opinions.

2.2.6 The proscription of specific newspapers by name and the sealing of their premises,

without a hearing at which they could defend themselves or any accusation of wrongdoing,

legal or otherwise, amount to harassment of the press. Such actions not only have the effect of

hindering the directly affected persons in disseminating their opinions, but also pose an

68

69 Brian Leatherman , ‘Internet Censorship and the Freedom of Speech’ (Washington, DC: American University)December 1999.

70 Constitutional Rights Project and Others v Nigeria, (2000) AHRLR 227 (ACHPR 1999)

71 Section 9 ACHR, See, Supra 52.




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immediate risk that Journalists and newspapers not yet affected by any of the decrees will

subject themselves to self-censorship in order to be allowed to carry on their work.

2.2.7 Decrees like these pose a serious threat to the public of the right to receive information

not in accordance with what the government would like the public to know. The right to

receive information is important Article 9 does not seem to permit derogation, no matter what

the subject of the information or opinions and no matter the political situation of a country.

Therefore, the Commission finds that the proscription of the newspapers is a violation of

Article 9 (1).

2.2.8 Government while imposing restrictions should respect certain general principles, care

should be taken to apply the least intrusive and restrictive measures in order to minimize the

chilling effect on freedom of expression; and any imposition of sanctions should be in strict

conformity with the principle of proportionality.72

2.2.9 In the Pentagon Papers case73, the Supreme Court observed that "any system of prior

restraints of expression comes to this Court bearing a heavy presumption against its

constitutional validity."74 Thus it ruled unconstitutional a prior restraint sought by the

government on publication during the Vietnam War of 47 Volumes of "top secret"

documents on grounds of national security and maintaining good relations with other

countries. The documents described in detail the internal decision-making procedures of

the US government leading to its involvement in the war and also highly sensitive

information regarding the efforts by other governments to assist in arranging an end to the72 Mogens Schmidt, CONFERENCE ROOM PAPER # 6 Limits to the restrictions to freedom of expression – Criteria and Application.

73 New York Times Co. v. United States, 403 U.S. 713, 91 S. Ct. 2140;29 L. Ed. 2d 822 (1971).

74 See, Supra 19




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war. The Supreme Court refused to uphold the restraint, even though the source who

provided the papers may well have obtained them in breach of the criminal law and even

though, in the view of a majority of the Court, publication would cause "substantial

damage to public interests".75

2.2.10 Hence, it is submitted before the court that refusal to impart information by way of

injunction is a serious infringement of one’s right and the ban imposed by the Government and

the injunction issued by District Court XII against the dissemination of images recorded by

Ms. Salma Ali76 should be revoked and Garunesia media should be allowed to disseminate the

images and information by removing the restriction imposed upon them.

75 United States v. The Progressive, Inc. 486 F. Supp. 5 (W D Wisc. 1979).

76 Para 17, Statement of facts, Oxford Media Law Moot Court Competition.




[xvii]

PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited above, it is humbly prayed that this Hon’ble Universal Court of Human Rights may graciously be

pleased:

To adjudge the issue in favour of the Applicants by holding and declaring that the

Digital Media and Protection of Public Safety Act, 2010 which makes the Executive Order

permanent is violative of the provisions of Article 19 of the Universal Declaration of Human

Rights.

To direct the State of Garunesia to lift the ban imposed by it upon Ms. Ali and News

Garunesia in terms of restrictions from dissemination of the images of any of the corpses of the

occupants.

To quash and set aside the Injunction Order passed by the District Court XII of

Garunesia against the dissemination of images recorded by Ms. Ali the same being violative of

the right to seek, receive and impart information as envisaged under Article 19 of Universal

Declaration of Human Rights.

Or pass any such further order(s) in the favour of the Petitioners as it may deem fit.

All of which is respectfully submitted

_______ _____________

Agents for Applicants

Place: The Hon’ble Universal Court of Human Rights



[xvii]