Freedom of Speech

Is China Using COVID-19 as an Excuse to Silence Its Dissenters?

By: Madison Kenyon

Impunity Watch Staff Writer

BEIJING, China — On December 31, 2019, the government in Wuhan, China announced that health authorities were in the process of treating dozens of individuals who all had similar symptoms. A few days later, the Wuhan government confirmed that these individuals had all been infected with a new virus: COVID-19. Now about five months later, the spread of the virus seems to be slowing down in cities throughout China, and thus China has begun lifting its lockdown measures.

Despite the Chinese government lifting many of its lockdown measures, over 200 cities in China now require its citizens to download software that tracks citizens’ movements. Specifically, in order to freely move throughout different Chinese regions, a citizen must download either the WeChat or Alipay App which contains this software. After downloading this, the citizen is required to answer a list of personal information questions, including: name, Chinese ID number, phone number, residential address, their place of work, their travel history, and their purpose for being in the region. Next, the citizen is required to answer a list of health questions, ranging from “Do you have any symptoms? to “Have you been in contact with someone with COVID-19?” Based on the answers to these questions, each citizen is administered a different colored scanning code – either green, yellow, or red. Those who receive a green code can move around the city freely. However, those that receive a yellow code must self-quarantine for seven days, and those with a red code must self-quarantine for 14-days.

Although these cities have not technically made it a requirement for its citizens to download this software, they have implicitly done so since citizens may not travel throughout the city without a colored code. Specifically, a citizen is required to scan into every public place they enter. The government argues this is necessary to track the travel history of someone who becomes infected with COVID-19 and track who the infected person has been in contact with.

On the outside, this appears to be a creative way to track and maintain the spread of COVID-19. However, this tracking technology concerns many human rights activists. For starters, there is no end-date for the use of this technology. Many believe the Chinese government will continue to use the “health-scare” justification to track its citizens far after this global pandemic is over. Second, there has not been much transparency from the Chinese government as to how it reaches its decision in the color code it provides to each individual. Due to this, many believe that China will use this color-coded system to silence the government’s dissenters by giving them red codes and forcing them into isolation. This is especially troublesome since this pandemic broke out amid the Hong Kong protests. As Sophie Richardson, the China Director at Human Rights Watch, stated, “This is viewed as scary stuff from a human rights perspective…It is yet another way to gather information about people to potentially use it against them in ways which there’s no legal basis.”

It will surely be interesting to see if these predictions by human rights activists come true.

For further information, please see:

CNN – China is Fighting the Coronavirus with a Digital QR Code. Here’s How it Works – 16 Apr. 2020

ABC News – China Rolls Out Software Surveillance for the COVID-19 Pandemic, Alarming Human Rights Advocates – 14 Apr. 2020

N.Y. Times – A Timeline of the Coronavirus Pandemic – 14 Apr. 2020

Business Insider – As China Lifts Its Coronavirus Lockdown, Authorities are Using a Color-Coded Health System to Dictate Where Citizens Can Go. Here’s How It Works. – 7 Apr. 2020

ECHR Rules Supermarket Cameras Don’t Violate Right to Privacy

By: Genna Amick

Journal of Global Rights and Organizations, Associate Articles Editor 

MADRID, Spain — On October 17, 2019, the Grand Chamber of the European Court of Human Rights found that the right to privacy of supermarket employees was not violated by the supermarket using visible and hidden cameras to record areas of the store where it suspected theft by employees.

The manager of a Spanish supermarket noticed that stock valued at upwards of €20,000 was missing. He decided to install cameras without informing any of his employees. The cameras focused on exits, entrances, and checkout counters. Based on the surveillance footage, the manager discovered that a number of his employees were taking goods without paying for them and helping customers to steal. He fired 14 of his employees, five of which are the applicants in this case.

The applicants argued that they were dismissed unfairly and that their right to privacy was violated by the installation of the cameras without their knowledge. The Spanish Employment Tribunal found that the dismissal was valid and that the applicant’s right to privacy had not been violated. After the Spanish High Court affirmed the Employment Tribunal’s ruling, the applicants submitted a complaint to the European Court of Human Rights.

In January 2018, a chamber of the European Court of Human Rights found that the employee’s right to privacy under Article 8 of the European Convention had been violated because they had not been informed of the installation of the cameras. However, the chamber did not find that the applicant’s right to a fair trial under Article 6 of the European Convention had been violated.

The case was then accepted and reviewed by the Grand Chamber which found that applicant’s Article 8 right to privacy was not violated nor was their Article 6 right to a fair trial. Delving into the right to privacy, the Grand Chamber held that employers are not required to notify employees of surveillance equipment if it was installed to protect a “significant” interest.

Applicant’s also argued that the State had a positive obligation to protect their rights against the actions of a private company. The Grand Chamber found that since there were a number of domestic laws in place intended to safeguard the applicant’s right to privacy which they could have sought legal remedies under, the State had acted within its margin of appreciation. The Grand Chamber concluded that the applicant’s Article 8 right to privacy had not been violated.

The Grand Chamber also concluded that applicant’s Article 6 right to a fair trial was not violated. In this case, the applicants attempted to argue that using their former employer’s video recordings of them stealing was inadmissible. The Grand Chamber held that using the videos as evidence did not undermine the fairness of the proceeding for two reasons. First, applicants had the ability to challenge the quality and accuracy of the videos. Second, the recordings were not the only evidence that was used by the Spanish domestic courts.

For further information, please see:

International Justice Resource Center – European Court Holds Secret Surveillance Did Not Violate Employees’ Privacy – 24 Oct. 2019

Warner Goodman – Employment Law Case Update: Lopez Ribalda and others v Spain – 24 May 2018

African Commission Finds Cameroon Violated Rights of Broadcasting Company

By: Jordan Broadbent

Impunity Watch Staff Writer

YAOUNDE, Cameroon —  On September 18, 2019, the African Commission on Human and Peoples’ Rights found that Cameroon violated the freedom of expression, freedom of non-discrimination, and property rights when it failed to create an independent licensing authority for a broadcasting company.

African Commission on Human and Peoples’ Rights in Session. Photo Courtesy of International Justice Resource Center.

In 2002, Cameroon Radio Freedom FM, a current affairs radio station, applied for a broadcasting license and never received a conformation of this application, despite statutory deadlines. The station broadcasted anyway and was brought to court on charges of broadcasting without a license. In 2003, the Minister of Communication ordered the equipment of the station to be forcefully confiscated.

In 2004, the Open Society Justice Initiative took on the case on behalf of the radio station. After negotiations in 2005, the two parties reached an agreement where the government agreed to turn over the equipment and provide a license to the station. However, after a year the government reneged on the agreement by failing to grant a broadcasting license or a provisional authorization. In 2007, the Open Society Justice Initiative requested a reopening of communication procedure and a full review of the case by the African Commission on Human and Peoples’ Rights. It also asked the Commission to have Cameroon grant a provisional order allowing the station to broadcast while the complaint was pending.

The petitioners argued that there were three different violations of human rights. They first argued for freedom of expression. The initial claim states that Cameroon has a state-run monopoly over broadcasting in direct violation of Article 9 for the African Charter of Human and People’s Rights. Their second claim states that the state deprived the station of their right to property under Article 14 of the Charter by taking the equipment. Lastly, they argue that the state violated Article 2 of the Charter, which states one’s right of freedom of expression “without discrimination of political or other opinion,” by refusing to grant the license.

The African Commission on Human and Peoples’ Rights declared that such an arbitrary denial lead to a restraint of legitimate communication, drawing on the Declaration of Principles on Freedom and Expression in Africa. Under the Human Rights Committee General Comment number 34 the Commission stated that an independent regulatory body must be in place and that Cameroon violated this by failing to have an independent organization that oversaw issues of freedom of expression.

The Commission found that the government violated the radio station’s right to property and ordered the government to pay for the property taken, the rent of the station, the cost of installing the equipment, legal fees, and loss of earnings since 2003. The state has also been ordered to pay for the moral damages against the former owner of the station.

Cameroon will have 180 days to comply with the Commission’s ruling.

For further information, please see:

International Justice Resource Center – Africa Commission Finds Violations in Cameroon’s Denial of Broadcasting License –  26 Sept. 2019

African Commission on Human and Peoples’ Rights – Open Society Justice Initiative (on behalf of Pius Njawe Noumeni) v. the Republic of Cameroon – 18 Sept. 2019

Open Society Justice Initiative – Freedom FM v. Cameroon – Nov. 2016

Human Rights Court Finds Holocaust Denial Not Protected Under Freedom of Expression

By: Mujtaba Ali Tirmizey

Impunity Watch Staff Writer

BERLIN, Germany – On October 3, 2019, the European Court of Human Rights (“ECHR”) held that denying the Holocaust happened is not protected expression under Article 10.

Udo Pastörs being arrested by police following a far-right demonstration in May 2012. Photo Courtesy of the Reuters/Fabien Bimmer.

On January 28, 2010, the day after Holocaust Remembrance Day, Udo Pastörs, a far-right politician, a member of Parliament and chairperson of the National Democratic Party (“NDP”) of Germany at the time, delivered a speech in which he declared that commemorations of the Holocaust were “theater” and claimed that “the so-called Holocaust is being used for political and commercial purposes.” In August 2012, he was convicted by the district court for violating the memory of the dead and intentional defamation of the Jewish people. Subsequently, his appeals to the regional court, the Court of Appeals and the Federal Constitutional Court were also rejected. After exhausting all his remedies in Germany, Pastörs filed a complaint with the ECHR in 2014.

The Court firmly rejected Pastörs’ claim that his statements were protected under Article 10 of the Convention, which protects freedom of expression. The Court emphasized that Pastörs had planned his speech in advance and intentionally chose his words while denying the Holocaust, contradicting established historical facts, and exhibiting disdain to its victims. The Court further noted that while an interference with freedom of speech over statements made in a Parliament warranted close scrutiny, these specific statements deserved little protection, if any, given that they were at odds with the democratic values of the Convention. In addition, this case also had to be analyzed in the context of the special moral responsibility of States which had experienced Nazi horrors.

Ultimately, the Court held that Pastörs had deliberately stated lies in order to defame the Jewish people and the oppression they had endured. Therefore, the conviction by the domestic courts had been proportional to the goal pursued and was an essential decision in a democratic society.

Interestingly enough, Pastörs, who is a clockmaker by trade, had previously run into trouble with the German authorities as well. In 2010, he was convicted of treason for calling Turkish-German men “semen cannons” and for referring to Germany as a “Jew Republic.” He also referred to famous American economist, Alan Greenspan, as a “hooknose.”

The NDP was founded by the supporters of the former Hitler regime and has an extensive history of being rallying point for new generations of German Nazis. The party has consistently failed in local and national elections and has been unable to make a significant impact in the European Parliament. If their chairperson had not been disciplined for his remarks in the Parliament, the NDP could have gained some momentum. However, the ECHR and the domestic courts correctly determined that the freedom of expression defense was ill-founded in this scenario.

For further information, please see:

The Algemeiner – Denying Holocaust is not a Human Right, Eu Court Determines in Ruling Against German Neo-Nazi – 4 Oct. 2019

Courthouse News Service – Court Rules Holocaust Denial Not Protected by Rights Law – 3 Oct. 2019

European Court of Human Rights – Holocaust Denial is not Protected by the European Convention on Human Rights – 2 Oct. 2019

European Court of Human Rights – Pastörs v. Germany – Oct. 2019

ECHR Says Ex-Brother and Sister-in-Law Have Right to Marry in Greece

By: Mujtaba Ali Tirmizey

Impunity Watch Staff Writer

ATHENS, Greece — On September 5, 2019, the European Court of Human Rights (“ECHR”) decided that legislation preventing marriage between ex-siblings-in-law is a violation of the right to marry.

Georgios Theodorou and Sophia Tsotsorou were married in 2005, just one year after George was divorced from his previous marriage to Tsotsorou’s sister. After George and Sophia wed, Sophia’s sister complained about the union to a local prosecutor, arguing nullity on the grounds of prohibited kinship between two spouses. In 2010, the marriage was annulled by the Regional Court on the basis of Article 1357 of the Greek Civil Code, which forbids marriage between persons related by collateral descent up to the third degree. The court reasoned that since Theodorou and Tsotsorou were second-degree relatives, their marriage was barred for reasons of decency and respect for the institution of the family. Theodorou and Tsotsorou’s subsequent appeals were dismissed, and their marriage was ultimately annulled in June 2015.

In 2015, Theodorou and Tsotsorou lodged a complaint with the ECHR, citing a violation of Article 12, which proscribes the right to marry. Placing particular importance to this point, the Court noted that a consensus had developed in the marriage of ex-sisters-in-law and brothers-in-law among the member states of the Council of Europe. Only Italy and San Marino had introduced barriers to such a marriage, but these obstacles were not absolute.

The Court also noted that Theodorou and Tsotsorou had not faced any problems prior to getting married and the national authorities had not raised any objections. Tsotsorou’s sister had not complained about the marriage until approximately a year and a half later, and the prosecutor filed a formal complaint two years after the marriage. Relevant authorities only issue a marriage license after certain legal conditions have been met. Here, these authorities did not express any doubts prior to issuing this license, and for more than ten years, the couple enjoyed legal and social recognition of a married relationship and the protection provided exclusively to married couples. Lastly, the Court also observed that the Government’s arguments concerning “biological considerations” and the risk of confusion were unconvincing.

As a result, the Court held that Article 12 had been violated because the annulment of the marriage had disproportionately restricted Theodorou and Tsotsorou’s right to marry.

This decision bodes well for Italy and San Marino, the remaining members of States of the Council of Europe where such a marriage is still forbidden. Other regions of the world may also benefit from this decision, where ex-brothers and sisters-in-law’s right to marry is taboo. Lastly, a broad interpretation of this case can help other parties under Article 12 as well, which states that “no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation.”

For further information, please see:

European Court of Human Rights – Judgement Theodorou and Tsotsorou v. Greece – legislation preventing the marriage of former brothers- and sisters-in-law – 5 Sept. 2019

Law and Religion UK – Marrying a Non-Deceased Wife’s Sister? Theodorou and Tsotsorou – 5 Sept. 2019