229A

THE 2017–2018
PRICE MEDIA LAW
MOOT COURT COMPETITION

NEAM PEAPS & SCOOPS

Applicant

FEDERAL REPUBLIC OF TURTONIA

Respondent

MEMORIAL FOR THE APPLICANT

Word Count: 4938

 TABLE OF CONTENTS

LIST OF ABBREVIATIONS......................................................................................................... IV

LIST OF AUTHORITIES ...............................................................................................................V

STATEMENT OF RELEVANT FACTS ....................................................................................... XIII

STATEMENT OF JURISDICTION ............................................................................................XVIII

QUESTIONS PRESENTED ........................................................................................................ XIX

SUMMARY OF ARGUMENTS .................................................................................................... XX

ARGUMENTS ADVANCED ........................................................................................................... 1

ISSUE 1A: TURTONIA‟S PROSECUTION OF PEAPS UNDER THE ODPA VIOLATES ARTICLE

19 OF THE ICCPR .................................................................................................................. 1

1A.1. PEAPS Distributed the Image not only for Private Interest but also for Public

Interest ................................................................................................................................ 1

1A.2. ODPA fails as a Law under ICCPR .......................................................................... 2

1A.3. ODPA cannot be Qualified as a Domestic Law of Turtonia since it has ratified

ICCPR ................................................................................................................................. 5

ISSUE 1B: TURTONIA'S PROSECUTION OF SCOOPS UNDER THE ODPA VIOLATES ITS

FREEDOM OF EXPRESSION UNDER ARTICLE-19 OF ICCPR................................................. 6

1B.1. SCOOPS is an online social media platform, therefore is an intermediary and as

such falls under the principle of ―Mere Conduit‖............................................................... 6

1B.2. Private Entities should not be burdened with censoring contents generated by its

users 8

ISSUE 2A: TURTONIA‟S PROSECUTION OF PEAPS UNDER THE IA VIOLATES ARTICLE 19

OF THE ICCPR..................................................................................................................... 12

2A.1. PEAPS did not violate the IA ................................................................................. 12

ii
 2A.2. The prosecution was unjustified ............................................................................. 13

2A.3. PEAPS‘ post on SCOOPS was not hate speech ..................................................... 15

ISSUE 2B: PROSECUTION OF SCOOPS UNDER IA VIOLATES ARTICLE 19 OF THE ICCPR

.............................................................................................................................................. 17

2B.1. IA is violative to article 19...................................................................................... 17

2B.2. SCOOPS falls within the immunity clause of OSP of IA ....................................... 18

2B.3. Prosecuting SCOOPS does not serve the purpose of IA complying with article 19

.......................................................................................................................................... 20

2B.4. SCOOPS is an intermediary.................................................................................... 21

RELIEF SOUGHT ...................................................................................................................... 22

iii
 LIST OF ABBREVIATIONS

ACHPR : African Court on Human and Peoples‘ Rights

ACHR : African Convention on Human Rights

AHRLR : African Human Rights Law Reports

African Charter : African Charter on Human and Peoples‘ Rights

Compromis : The 2017-18 Price Media Law Moot Court Competition Case

CUP : Cambridge University Press

ECHR : European Convention of Human Rights

ECtHR : European Court of Human Rights

EHHR : European Human Rights Reports

European : Convention for the Protection of Human Rights and

Convention Fundamental Freedom

IACtHR : Inter-American Court of Human Rights

ICJ : International Court of Justice

ICCPR : International Covenant on Civil and Political Rights

UDHR : Universal Declaration of Human Rights

UK : United Kingdom

UN : United Nations

US : United States

iv
 LIST OF AUTHORITIES

Treaties and Conventions

Vienna Convention on the Law of Treaties, 1969

Johannesburg Principles on National Security, Freedom of Expression and Access to

Information UN Doc E/CN 4/1996/39 (1996)

Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217A (III)

(UDHR)

International Covenant on Civil and Political Rights (adopted 16 December 1966, entered

into force 23 March 1976) 999 UNTS 171 (ICCPR)

Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention on Human Rights) (ECHR)

American Convention on Human Rights (adopted 22 November 1969, entered into force 18

July 1978) 1144 UNTS 123

Council Directive 2000/31/EC of 8 June 2000 on certain legal aspects of information society

services, in particular electronic commerce, in the Internal Market ("Directive on electronic

commerce") [2000] OJ L178/1

v
 Cases

African Court on Human and Peoples' Rights Cases

Amnesty International v Sudan (2000) AHRLR 297 (ACHPR 1999)

European Court of Human Rights Cases

Incal v Turkey (1998) 29 EHRR 449

Thoma v Luxembourg ECHR 2001-III 67

Delfi AS v Estonia App No 64569/09 (ECtHR, 16 June 2015)

Scarlet Extended NV v SABAM Case C-70/10 (5 February, 2010) ECR I- 12006

Handyside v United Kingdom (1976) 1 EHRR 737

The Sunday Times v UK (1979) 2 EHRR 245

Handyside v UK (1976) 1 EHRR 737

Oberschlick v Austria (1995) 19 EHRR 389

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

Le Pen v France App no 18788/09 (ECtHR, 5 July 2010)

Éditions Plon v France App no 58148/00 (ECtHR, 18 May 2004)

Krupko and others v Russia, App no 26587/07 (ECtHR, 26 June 2014)

Bayatyan v Armenia, App no 23459/03 (ECtHR, 7 July 2011)

Hashman and Harrup v United Kingdom, App no 25594/94 (ECtHR, 25 November 1999)

Zana v Turkey App no (69/1996/688/880) (25 November, 1997) 27 EHRR 667

Lingens v Austria App no 9815/82 (ECtHR, 8 July 1986)

Axel Springer AG v Germany App no 39954/08 (ECtHR, 7 February 2012)

Observer and Guardian v United Kingdom App no 13585/88 (ECtHR, 26 April 1979)

Von Hannover v Germany App 60641/08 (ECtHR, 7 February 2012)

Moseley v United Kingdom App no 48009/08 (ECtHR , 10 May 2011)

vi
Freedom and Democratic Party (ӦZDEP) v Turkey (2000) 31 EHRR 27

Refah Partisi v Turkey (2003) 37 EHRR 1

Autronic AG v Switzerland App no 12726/87 (ECtHR, 22 May 1990)

Silver and Others v United Kingdom App no 7136/75 (ECtHR, 25 March 1983)

Malone v United Kingdom App no 8691/79 (ECtHR, 2 August 1984)

Rekvényi v Hungary App no 25390/94 (ECtHR, 20 May 1999)

Gaweda v Poland App no 26229/95 (ECtHR, 14 March 2002)

Gillan and. Quinton v United Kingdom App no 4158/05 (ECtHR, 12 January 2010)

Kruslin v France App no 11801/85 (ECtHR, 24 April 1990)

Huvig v France App no 11105/84 (ECtHR, 24 April 1990)

Jerslid v Denmark Application no15890/89 (ECtHR, 23 September 1994)

Print Zeitungsverlag GmbH v. Austria Application no 26547/07 Chamber Judgment [2013]

ECHR 943 (10 October 2013)

Leroy v France App no 36109/03 (ECtHR, 2 October 2008)

Balsyte-Lideikiene v Lithuania App no 72596/01 (ECtHR, 4 December 2008)

Perincek v Switzerland App no 27510/08 (ECtHR, 15 October 2015)

Inter-American Court of Human Rights Cases

Fontevecchia and D‘Amico v Argentina IACtHR (2011) Series C No 238

Herrera-Ulloa v Costa Rica Petition no 12367 (IACtHR, 2 July 2004)

United Nations Human Rights Committee Cases

Tae-Hoon Park v Republic of Korea Communication No 628/1995 UN Doc

CCPR/C/57/D/628/1995 (1998)

De Groot v The Netherlands, Communication No 578/1994 (HRC UN Doc

CCPR/C/54/D/578/1994, 14 July 1995

Malcolm Ross v Canada UN Doc CCPR/C/70/D/736/1997 (HRC, 18 October 2000)

vii
Supreme Court of the United States Cases

Florida Star v. B.J.F., 491 U.S. 524 (1989);

Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979);

Landmark Communications, Inc., v. Virginia, 435 U.S. 829 (1978);

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469(1975)

New York Times Co. v United States, 403 U.S. 713 (1971)

Reno v American Civil Liberties Union, 521 US 844 (1997)

Zeran v America Online, Inc129 F.3d 327, 331 (4th Cir. 1997)

Texas v Johnson 491 US 397, 414 (1989)

Joseph Burstyn Inc v Wilson 343 US 495, 506 (1952)

Lamont v Postmaster General, 381 U.S. 301 (1965)

Time Inc v Hill 385 US 374 (1967)

New York Times v Sullivan 376 US 254 (1964)

Terminiello v Chicago 337 US 1, 4 (1949)

Cox v Louisiana 379 US 536, 551–52 (1965)

Tinker v Des Moines Independent Community School District 393 US 503, 508–09 (1968)

Coates v Cincinnati 402 US 611, 615 (1971)

National Association for the Advancement of Colored People v Claiborne Hardware Co. 458

US 886, 910 (1982)

Whitney v California 274 US 357, 376 (1927)

Brandenburg v Ohio 395 U.S. 444 (1969)

United Kingdom Cases

Reynolds v Times Newspapers [1994] 4 All ER 609 (UK)

Other Court Cases

viii
Aubry v. Éditions Vice-Versa Inc [1998] 1 SCR 591

Google France v Louis Vuitton Malletier and others C-236/08 to C-238/08 (23 March 2010)

LSG Gesellschaft zur Wahrnehmung von Leistungsschutzrechten GmbH v Tele2

Telecommunication GmbH C-557/07 (CJEU, 19 February 2009)

ix
 Books and Academic Articles

Richard Clayton and Hugh Tomlinson, The Law of Human Rights (1st Ed., OUP 2000)

Eric Barendt, Freedom of Speech (2nd Ed., OUP, 2007)

MA Sanderson, 'Is Von Hannover v Germany a step backward for the substantive analysis of

speech and privacy rights?' (2004) 6 European Human Right Law Review 631, 641

Niva Elkin-Koren, Copyright Law and Social Dialogue on the Information Superhighway:

The Case against Copyright Liability of Bulletin Board Operators, 13 Cardozo Arts & Ent.

L.J. 345, 399-410 (1995)

Benoit Frydman, ‗Regulating Internet Content Through Intermediaries in Europe and the

USA‘ (2002) 23 Zeitschrift fur Rechtssoziologie 41, 51

Cynthia Wong, ‗Mapping Digital Media: The Media and Liability for Content on the

Internet‘ (2011) Open Society Foundations Reference Series no 12, 16

x
 Online sources

Toby Mendel, ‗Restricting Freedom of Expression: Standards and Principles Background

Paper for Meetings Hosted by the UN Special Rapporteur on Freedom of Opinion and

Expression‘ (Centre for Law and Democracy) <http://www.law-democracy.org/wp-

content/uploads/2010/07/10.03.Paper-on-Restrictions-on-FOE.pdf> accessed 18 October

2013

ARTICLE-19, ‗Defending Freedom of Expression and Information‘

<https://www.article19.org/data/files/Intermediaries_ENGLISH.pdf> accessed on 20

December 2017

The Camden Principles on Freedom of Expression and Equality (April 2009)

<www.article19.org/data/files/pdfs/standards/the-camdenprincipleson-freedom-of-expression

and-equality.pdf> accessed 28 November 2017

Karine Perset, ‗The Economic and Social Role of Internet Intermediaries‘ (2010)

<http://www.oecd.org/internet/ieconomy/44949023.pdf> accessed 22 December 2017

Ercan Gurses, ‗Turkey Fines Twitter for Failure to Remove ―Terrorist Propaganda‖: Official‘

Reuters (11 December 2015) <http://www.reuters.com/article/us-turkey-twitter-fine-

idUSKBN0TU0NK20151211> accessed 17 January 2016

University of Oslo, ‗The E-Commerce Directive Article 14: Liability exemption for hosting

third party content‘, 26 April 2011

<https://www.duo.uio.no/bitstream/handle/10852/19450/117618.pdf> accessed 8 October

2017

xi
 Statute

Information Technology Act 2000 (India)

Copyright Act 2001 (Kenya)

Miscellaneous

Report of the Special Rapporteur on the promotion and protection of the right to freedom of

opinion and expression, 16 May 2011, A/HRC/17/27.

UN Special Rapporteur on Freedom of Expression, A/66/290, 10 August 2011

UNHRC, ‗Report of the Special Rapporteur on the Promotion and Protection of the Right to

Freedom of Opinion and Expression‘ (2011) UN Doc A/HRC/17/27

UNHRC, 'General comment no. 34 Article 19 Freedoms of opinion and expression' (2011)

UN Doc CCPR/C/GC/34

UNGA ‗Report of the United Nations High Commissioner for Human Rights on the expert

workshops on the prohibition of incitement to national, racial or religious hatred‘ U.N. Doc.

A/HRC/22/17/Add.4 (2013)

UNHRC, ‗Report of the Special Rapporteur on the Promotion and Protection of Human

Rights and Fundamental Freedoms While Countering Terrorism‘ (28 December 2009) UN

Doc A/HRC/13/37

Measures for Managing Internet Information Services, Promulgated by Decree no 292 of the

State Council on25 September 2000 (People‘s Republic of China)

<http://www.chinaculture.org/gb/en_aboutchina/2003-09/24/content_23369.htm> accessed

17 November 2017

xii
 STATEMENT OF RELEVANT FACTS

Turtonia

Turtonia is a small democratic country with an ethnically homogeneous population. Turtonia

is a member of the United Nations and has ratified the International Covenant on Civil and

Political Rights (ICCPR).

Aquaria

Aquaria is also a democratic country, and the majority of its citizens share the same ethnicity

and religion as the Turtonians.

Influx of immigrants

In the past three years, Turtonia has seen a significant influx of immigrants from neighboring

country Aquaria. In Turtonia, the wave of Aquarian immigrants has caused a furor among

some Turtonians, who claim that the immigrants have disrupted the economy and diluted the

culture

Legal System of Turtonia

There are no jury trials in Turtonia. The judge or judges take on a highly active role and

preside over all aspects of the court proceedings. All parties and their lawyers have the same

rights and duties regarding presenting facts and evidence in support of their case without the

assistance of the judge. Appeals from trial courts are made directly to the three-judge

Supreme Court which has discretion whether or not to hear an appeal.

Extremist terror group „True Religion‟

Since 2015, a religious extremist terror group called True Religion has gained popularity

with some young people in Aquaria and has attacked mainstream religious institutions and

schools, stormed universities murdered lecturers and students and held people hostage.

True Religion is widely regarded as a terrorist organization in Aquaria, Turtonia, and many

other countries including members of the UN Security Council. As the Aquarian government

xiii
has increased its law enforcement response to True Religion and over the past year has

successfully arrested and prosecuted a number of its members, Its leader, an Aquarian

named Prinsov Parkta, has been in hiding for some time to avoid arrest, but he nevertheless

regularly issues calls to action through public videos.

Vocal group of nationalist „Turton Power‟

Beginning in late 2015, a vocal group of Turtonians, calling themselves Turton Power,

began to protest against immigration and called for the resignation of the Turtonian Minister

of Immigration, Wani Kola for allowing Aquarians to enter the country. Kola is known for

being a champion of immigration. Kola has faced harassment on online. One of the member

of the Turton Power has been convicted of attempting to assault her in a public place.

Popular Social Media „Scoops‟

Scoops is the most popular social media platform based in Turtonia earning a good amount of

revenues. Users build a profile through the app. The profile consists of (1) a screen name, (2)

topics of interest, and (3) friends. Users can upload photos and videos and tag the post with

up to two topics of interest. The content will appear on the screens of devices of friends and

20 other users having the same topic of interest. These 20 other users are selected by an

algorithm. Scoops also uses human review to assist the algorithm in reaching the right users

who may be interested in the content. The viewer of the post can swipe the post left to

dismiss it. Terms of Service of Scoops specify that they do not allow harmful and malicious

content such as spam, non-consensual sharing of intimate images, hate speech or child

exploitative imagery.

XYZ News

XYZ News is a popular Turtonian TV news network. XYZ is well-respected in Turtonia and

neighbouring countries for being a reliable and objective news source. XYZ maintains a

Scoops account called ―XYZ News.‖

xiv
Peaps and the Post

A Turton Power member named Niam Peaps created a Scoops account with the screen name

―XYZ News12‖ on May 1. At noon on May 2, Peaps posted on his account an image

selecting ― XYZ News‖ as the Topic of Interest that appeared to show Kola standing naked in

a hotel room. She is facing another individual, who has his right arm on her left shoulder.

The second individual appears to be Parkta, the leader of True Religion.

Exhibit A

The caption of the post put forward the matter that

Minister Kola approved visas for at least 23 members

of the True Religion terror group. It referred Ministry

of Immigration as source. It also quoted ministerial

staffer that Kola ordered the destruction of documents

that showed that some of the visa recipients were truly terrifying individuals who will use

any measure of violence to enforce their religion on Turtonians.

Events after the post

At 7:00pm on May 2, Kola‘s staff reported the post to Scoops through Scoops‘ online

reporting form as a violation of Scoops‘ terms of service.. . Scoops responded with an

electronic message asking to enter name in order to remove the post. Kola‘s staff did not

complete the form.

On May 3, at 11:00 a.m., Kola‘s legal counsel submitted a letter to Scoops,

threatening a civil action for defamation and violation of privacy . Scoops removed the post

and all shares of the post at 1:00pm on May 5, after the submission of the complaint.

xv
On May 3, Turtonia‘s major newspaper ran a factual article about the post. The TurtonTimes

also ran an opinion piece mentioning that the post coincided with growing dissatisfaction

with Kola, and that it was time for her to resign. The opinion piece cited the rising fear of

Turtonians that Aquarian immigrants were stealing jobs and that True Religion might begin

to take root in Turtonia.

On May 4 and May 5, protesters gathered outside Kola‘s office calling for her

resignation. Although small groups of protesters had appeared from time to time throughout

Kola‘s three years in office. Protesters raised voice against immigration of Aquarians to

Turtonia. In such circumstances Kola resigned from office on May 10 without public

statement.

Background of the Online Dignity Protection Act of 2015

The Online Dignity Protection Act of 2015 was passed in response to a growing problem of

Non Consensual Sharing of Intimate Images commonly known as ―revenge porn‖.

Background of the Information Act of 2006

The Information Act of 2006 was passed after the distribution of fake documents, ahead of

the 2005 Turtonian General Elections. After the distribution of false information about a

favoured political candidate the public polls showed a massive shift in voter opinions. The

favoured candidate lost the election, and civil unrest followed, along with a decrease in

public faith in the democratic process. The government passed this law in order preserve the

integrity of the democratic process and avoid the hijacking of elections as well as to

safeguard the peace.

Peaps‟ Prosecution and findings of the trial court

Peaps was then prosecuted under the Online Dignity Protection Act of 2015 and sentenced

Peaps to two years' imprisonment and no fine.He was also prosecuted under Section 1(b) of

the Information Act of 2006 and sentenced Peaps to a fine equivalent of 100,000 USD.

xvi
 At trial, Peaps submitted that he had heard that XYZ was about to break the sex-for-

visa story, and he wanted to break the story first. On the Turton Power website he found the

image of Kola and Parkta in the hotel room, which he decided to use to illustrate the

relationship.

Based on evidence at trial, the trial court found amongst others; that image had been

created by a member of Turton Power with screen name ―PowerPlayer,‖ and photoshopped

Parkta and Kola on to it. That the person who created the photoshopped image with Kola and

Parkta posted it in mid-April on the Turton Power website but removed the image from the

site on May 3.

Scoops prosecution and findings of the trial court

Scoops was prosecuted under the Online Dignity Protection Act of 2015and sentenced to a

fine equivalent to 200,000 USD. Scoops was also prosecuted under Section 1(a) of the False

Information Act of 2006 and sentenced Scoops to a fine equivalent of 100,000 USD.

Based on evidence at trial, the trial court made the additional findings amongst others:

That Scoops received notice of the image at 7:00 p.m., on May 2, when Kola's staff reported

the image as a nude image of me shared without my consent. That for purposes of Count

Two (violating the FIA), Scoops was on notice of the Peaps post from 11:00 a.m., on May 3,

when Kola's legal counsel submitted a defamation claim.

Appeal

The Supreme Court of Turtonia, declined to consider Peaps‘ and Scoops‘ appeals, thereby

exhausting their domestic remedies.

xvii
 STATEMENT OF JURISDICTION

Niam Peaps and Scoops (Applicants) have approached the Universal Freedom of

Expression Court, the special chamber of the Universal Court of Human Rights hearing

issues relating to the right of freedom of expression under Article 19 of the Universal

Declaration of Human Rights.

All appeals or other remedies within the Turtonian court system have been exhausted.

No law, domestic or international, restricts the Applicants‘ standing to bring the present

challenges. On the basis of the foregoing, the Honourable Court is hereby requested to

adjudge the dispute according to the rules and principles of international law.

xviii
 QUESTIONS PRESENTED

1A. WHETHER TURTONIA‘S PROSECUTION OF PEAPS UNDER THE ODPA VIOLATES ARTICLE 19

OF THE ICCPR?

1B. WHETHER TURTONIA‘S PROSECUTION OF SCOOPS UNDER THE ODPA VIOLATES ARTICLE

19 OF THE ICCPR?

2A. WHETHER TURTONIA‘S PROSECUTION OF PEAPS UNDER THE IA VIOLATES ARTICLE 19 OF

THE ICCPR?

2B. WHETHER TURTONIA‘S PROSECUTION OF SCOOPS UNDER THE IA VIOLATES THIS SAME

INTERNATIONAL PRINCIPLE?

xix
 SUMMARY OF ARGUMENTS

1A. TURTONIA‟S PROSECUTION OF PEAPS UNDER THE ODPA VIOLATES ARTICLE 19 OF

THE ICCPR

Turtonia‘s Prosecution of Peaps under the ODPA violates Article 19 of the ICCPR

because Peaps Distributed the Image not only for Private Interest but also for Public Interest.

Also, ODPA fails as a Law under Article 19 of ICCPR because on the first place, The Law,

ODPA fails the Test of ‗Prescribed by Law‘ as ODPA does not qualify as a law in itself.

Therefore, restrictions given by ODPA are not legal. As a consequence of not being qualified

as a law, ODPA does not pursue any legitimate aim and also ODPA does not help Turtonia to

achieve its legitimate aim.

Also, ODPA directly violates the Johannesburg Principles. Considering the violation

of both ICCPR and international principle of Freedom of Expression, according to Vienna

Convention on Law of Treaties, it does not qualify to be a domestic Law. Hence, the

prosecution of Peaps under Article 19 of ICCPR violates Article 19 of the ICCPR.

1B. TURTONIA‟S PROSECUTION OF SCOOPS UNDER THE ODPA VIOLATES ARTICLE 19 OF

THE ICCPR

Scoops prosecution under the Online Dignity Protection Act of 2011 violates

international principles because Scoops is a third party disseminator. Scoops is an online

social media platform used by many Turtonians to share their topic of interests. Scoops does

not craft, solicit, or edit the messages that it disseminates, as such is a ―mere conduit‖ and

therefore should be exempt from liability.

Furthermore, requiring an intermediary to decide the legality of its users‘ posts is

susceptible to abuse as it lacks the opportunity to appeal a ‗notice & takedown‘ request, using

procedures to be provided by both the intermediary and a competent judicial authority. If

xx
such online platforms are held liable for the contents provided by its users, it would force

them to shoulder the burden of censoring those contents and in turn would risk violating the

freedom of expression of its third party users.

Scoops facilitates the dissemination of its user‘s messages provided to it by its users,

thus and cannot be held liable for a message that was disseminated in its routine practice.

2A. TURTONIA‟S PROSECUTION OF PEAPS UNDER THE IA VIOLATES ARTICLE 19 OF THE

ICCPR

The right to freedom of expression is of paramount importance in any democratic

society. The government may not prohibit the expression of an idea simply because society

finds the idea itself offensive or disagreeable. But in the post Peaps neither resorted to

violence nor advocated for damage of national unity. Therefore, peaps did not violated The

IA Act and his post was protected under ICCPR.

The Charter is invalid under the ICCPR, which protects freedom of expression and

freedom of religion equally online and offline. Restrictions on expression must (1) be

prescribed, and (2) be necessary. The Act contains vague languages and thus law is not

precise. the Act‘s restrictions are unnecessary. Restrictions must not be overbroad so as to

discourage protected expression. The Act is overbroad because it imposes unnecessary

restrictions over freedom of expression. Additionally, restrictions must be narrowly written

and must not restrict expression more than necessary to achieve the state‘s narrow goals.

Finally the damages are not the least restrictive measures and there was no pressing social

needs making the prosecution unjustified.

Speech that offends, shocks, or disturbs is nonetheless protected speech. Speech is

still protected even if it embarrasses or coerces others into action. Peaps did not recommend

resignation, nor did he discuss resorting to violence. Therefore, there was no direct advocacy

for lawless action and thus his post was not a hate speech to be prosecuted.

xxi
2B. TURTONIA‟S PROSECUTION OF SCOOPS UNDER THE IA VIOLATES ARTICLE 19 OF THE

ICCPR

Scoops prosecution under the Information Act of 2006 is illegal and unjustified

because the Act itself is in violation of Article- 19 of ICCPR. Article 19 of ensures freedom

of expression and opinion ‗without interference‘. Making scoops liable for any individual‘s

opinion and prosecuting scoops for a content posted in the site by a third party is a bar in

freedom of expression and a grave interference. Furthermore, the law is very vague and

ambiguous as it penalizes any individual or organization for publishing false information but

does not specify the criteria in determining which particular information can be regarded as

false and how to percolate such information.

Scoops also falls within the immunity clause for OSP under the IA. This is because

Scoops didn‘t receive any financial benefit to the infringing activity that was posted by

Peaps; nor it was possible for Scoops to be aware of the material or activity that has been

infringing the rights of Kola as it is not possible to survey all the contents that are passed out

from the users. Moreover, Scoops expeditiously removed access to the material after the

nature of the post was brought to the notice of Scoops by the legal counsellor of Kola with

the submission of the legal notice.

Finally, prosecuting scoops does not serve the purpose of IA complying with article

19 as there was no pressing social need to prosecute Scoops as it is an intermediary. Also

there was no threat to public order from Scoops and it has falsely been held responsible for

the conducts of other actors. Moreover, although the nature and severity of the punishment

are relevant in determining the proportionality pursued to the legitimate aim, the fine imposed

upon Scoops was disproportionate and excessive in comparison with the other instances.

Lastly, as Scoops is an intermediary and is fulfilling its function as a host of all information

provided to it, cannot be held liable for a specific message in its routine practice.

xxii
 ARGUMENTS ADVANCED

ISSUE 1A: TURTONIA‟S PROSECUTION OF PEAPS UNDER THE ODPA VIOLATES ARTICLE

19 OF THE ICCPR

1A.1. PEAPS Distributed the Image not only for Private Interest but also for Public
Interest

While PEAPS‘ prosecution was not based on a public interest of keeping the peace but for

prosecuting someone in failure of prosecuting the actual culprit, that this Turton Power, the

restriction imposed was also not strictly proportionate or absolutely necessary. Charging

PEAPS was unnecessary because there is no direct evidence to show his distribution of the

image was endangering public safety. The government cannot justify these charges with the

fact that after distribution of the image there was violence and two Aquarian immigrants were

killed in consequence to that violence because there was already a growing intolerance of

influx of Aquarian immigrants.1 PEAPS though distributed the image for maximizing his

follower on SCOOPS2, it must be noted that he found it from the website of Turton Power3

and he found it important to reveal it since Kola was holding the office of Ministry of

Immigration. Moreover, significantly, a high-level leader is ‗subject to greater scrutiny‘

regarding aspects that ‗could be linked to his private life‘ but reveal matters of public

interest.4 The act of PEAPS to distribute the image of Kola was relevant to his aim of

deterring similar crime among other high-level leaders. Society‘s interest5 in being informed

1
Compromis 4.1
2
Compromis 12.2
3
Compromis 12.2
4
Fontevecchia and D’Amico v Argentina IACtHR (2011) Series C No 238, para 60; Incal v Turkey (1998) 29
EHRR 449, para 54
5
Peck v The United Kingdom (2003) 36 EHRR 41, para 78

1
about circumstances that ‗affected general rights‘ and ‗entailed major consequences‘6

outweighed any expectation of privacy in Kola‘s identity.

Courts have also allowed breach of confidentiality where it is in public interest. More

specifically, breach of privacy laws has also been allowed to expose deceit by public figures

as this is deemed to be in line with public interest. It has been held that it is unconstitutional

for publishers of truthful information in public interest to be punished.7

In New York Times Co v United States, the Court upheld the press‘ right to publish

information of great public concern obtained from documents stolen by a third party. The

rationale was that the stolen documents‘ character and the consequences of public disclosure

were to be considered over and above the fact that the documents were stolen.8

It is evident that during the tenure of Kola, there has been a significant influx of

immigrants9 and her intimacy with someone who is a leader of a terrorist organization10 was

definitely something to be concerned about, in regard to public interest.

1A.2. ODPA fails as a Law under ICCPR

The prosecution of PEAPS under ODPA cannot pass the thresholds given by Article 19

of ICCPR, the only International Convention which Turtonia has ratified. ODPA‘s restriction

on Non Consensually Shared Intimate Images does not meet this three-part test because it

directly fails first two tests consequently failing the third test as well and is not therefore a

valid restriction on freedom of expression.

6
Fontevecchia and D’Amico v Argentina IACtHR (2011) Series C No 238, para 61
7
Florida Star v B.J.F. 491 U.S. 524 (1989); Smith v Daily Mail Publishing Co. 443 U.S. 97 (1979); Landmark
Communications, Inc, v Virginia, 435 U.S. 829 (1978); Cox Broadcasting Corp. v Cohn, 420 U.S. 469 (1975)
8
New York Times Co. v United States, 403 U.S. 713 (1971)
9
Compromis 2.1
10
Compromis 3.2

2
1A.2.1. The Law, ODPA fails the test of „Prescribed by Law‟

According to the first threshold, the restriction must be prescribed by law. Contention

lies in whether the ‗law‘ providing the restriction itself satisfies the standard or not. It has

been clearly stated in the General comment No. 34 of ICCPR that for the purposes of

paragraph 3, a norm, to be characterized as a ―law‖, must be formulated with sufficient

precision to enable an individual to regulate his or her conduct accordingly11 and it must be

made accessible to the public. A law may not confer unfettered discretion for the restriction

of freedom of expression on those charged with its execution.12

Firstly, ODPA was not formulated with sufficient precision to enable individual to

regulate his or her conduct accordingly because The Online Dignity Protection Act of 2015

was passed in response to a growing problem of nonconsensual sharing of intimate images as

that problem reached a peak in the previous years. Therefore, it can be stated that the law

enacted in response to a particular situation cannot be precise enough to cover images

available in public domain hence the consent factor made irrelevant especially one that was

already introduced by someone else belonging to public officials. Thus the first section of

ODPA is too wide.

Secondly, ODPA has conferred unfettered discretion for the restriction of freedom of

expression because this restriction has no limit described in the law. Most importantly, since

this law violates ICCPR and international principles positively taken upon be a state cannot

be taken as a domestic law in itself since a state ratifying an international convention must

obey the mandate of the same while enacting domestic law.13

11
de Groot v The Netherlands, Communication No. 578/1994, Views adopted on 14 July 1995
12
UN Human Rights Committee (HRC), CCPR General Comment No. 27: Article 12, 2 November 1999,
CCPR/C/21/Rev.1/Add.9
13
United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, UNTS vol 1155, p 331, Art. 14(1)

3
1A.2.2. ODPA does not pursue any legitimate aim

Since ODPA does not stand as a ‗law‘, restriction provided by it does not pursue any

legitimate aim. We acknowledge that PEAPS knowingly distributed an image depicting a

public official whose conduct has considerable effect on public life and national politics. But

according to Johannesburg Principles, which precisely deal with the balance of privacy and

freedom of expression, no one may be punished for criticizing or insulting the state, the

government, its agencies, or public officials unless the criticism or insult was intended and

likely to incite imminent violence.14 Moreover, PEAPS had no intention of inciting violence

because this image was seen by people before he only used it as an adornment for his write

up. Therefore, while the trial court was bound by the state laws, the Court of Expression has a

wider jurisdiction and we submit that this court duly applies the principles of freedom of

expression.

Now, even if it is argued that this distribution has incited imminent violence and

caused death of two Aquarian immigrants15 eventually, it must be noted that the insult was

not intended to do the same rather PEAPS confessed that he simply wanted to break the story

first to maximize his influence score on SCOOPS and he used the image to illustrate the

relationship for his SCOOPS friends.16 Furthermore, there was already a growing intolerance

of influx of Aquarian immigrants which was reflected in the violence.17 Hence, this is

apparent that ODPA violates Johannesburg Principles.

14
Article 19, The Johannesburg Principles on National Security, Freedom of Expression and Access to
Information, 1 October 1995, Principle 7(b)
15
Compromis 9.5
16
Compromis 12.2
17
Compromis 4.1

4
1A.3. ODPA cannot be Qualified as a Domestic Law of Turtonia since it has ratified
ICCPR

Turtonia has not ratified any international convention apart from ICCPR.18 This

clearly indicates how important and significant it is for Turtonia to enact and enforce its

domestic law as per the mandate of ICCPR. According to the Vienna Convention19

ratification means in each case the international act so named whereby a State establishes on

the international plane its consent to be bound by a treaty. As Turtonia ratified ICCPR, it was

Turtonia‘s duty to conform to ICCPR while enacting domestic laws.20 Since ODPA was not

made in line to the ICCPR, it loses its claim to remain a domestic law of Turtonia.

Finally, a prosecution under a law which is not qualified to be a domestic law in itself,

is questionable and therefore the prosecution is violative to Article 19 of ICCPR.

18
Compromis 1.1
19
Vienna Convention on the Law of Treaties 1969, Art. 2(1)(b)
20
Vienna Convention on the Law of Treaties 1969, Art. 2(1)(b)

5
 ISSUE 1B: TURTONIA'S PROSECUTION OF SCOOPS UNDER THE ODPA VIOLATES ITS

FREEDOM OF EXPRESSION UNDER ARTICLE-19 OF ICCPR

1B.1. SCOOPS is an online social media platform, therefore is an intermediary and as

such falls under the principle of “Mere Conduit”

The exercise of the right to freedom of expression on the Internet depends, to a large

extent, on a broad range of actors—mainly private ones—who act as intermediaries by

providing a range of services such as access and interconnection; transmission, processing

and routing of Internet traffic; hosting and providing access to material posted by others,

searching or referencing materials on the Internet; financial transactions; and connecting

users through social networks, among other things.21

The Joint Declaration on Freedom of Expression and the Internet provides that no

one who simply provides technical Internet services should be liable for content generated by

others. It is permitted as long as they do not specifically intervene in that content or refuse to

obey a court order to remove that content, where they have the capacity to do so. This is

otherwise known as ‗mere conduit‘ principle.22

Furthermore, a platform is a ‗mere conduit‘ and is exempt from liability associated

with the communications of a third party when the operator does not initiate the transmission

of the communication does not select the receiver of the transmission, and does not select or

modify the information within the transmission.23 In the US jurisdiction, Internet service

providers are protected from liability when acting as a publisher or disseminator of user

21
United Nations. General Assembly. Report of the Special Rapporteur on the promotion and protection of the
right to freedom of opinion and expression, Frank La Rue. A/HRC/17/27. May 16, 2011. Para. 38
22
UN Human Rights Council, Report of the Special Rapporteur on the promotion and protection of the right to
freedom of opinion and expression 17 April 2013 A/HRC/23/40; Organization for Security and Co-operation in
Europe (OSCE) Representative on Freedom of the Media, Organization of American States (OAS) Special
Rapporteur on Freedom of Expression and African Commission on Human and Peoples‘ Rights (ACHPR)
Special Rapporteur on Freedom of Expression and Access to Information. June 1, 2011; Joint Declaration on
Freedom of Expression and the Internet Point 2(a)
23
Council Directive 2000/31/EC of 8 June 2000 on certain legal aspects of information society services, in
particular electronic commerce, in the Internal Market ("Directive on electronic commerce") [2000] OJ L178/1,
paras 42-43

6
opinions.24 A platform operator can be exempt from liability if they are not involved with the

information that is transmitted.25

SCOOPS is acting as a ‗mere conduit‘, as it serves only as a social media platform for

transmissions, and does not initiate, or select the information in the posts on its page, rather it

is left upon the user to build a profile through the app so that they can post and spread their

content through the app.26SCOOPS operates as a forum for its users to create compelling

contents and share news, opinion or latest gossips so that it appears first on SCOOPS. There

is no mention of SCOOPS creating its own contents and as such, does not participate in

creating any of the messages shared by its users and should not be held liable for

disseminating a user‘s message as intermediaries are exempted from liability for contents

generated by others as accepted in the international principals27 mentioned before.

Furthermore, SCOOPS provides a platform for third parties to post and discuss and forward

contents to other persons interested on that issue.28 As SCOOPS lack editorial control, it

makes SCOOPS a forum, rather than a publisher29 and a forum cannot be held liable for

words it does not select, solicit, or modify.30 However, under the ICCPR and UDHR, even a

publisher would be protected from liability connected to third party statements.31

24
Zeran v America Online, Inc 129 F.3d 327, 331 (4th Cir. 1997). Also see, The United States Communications
Decency Act (CDA), Section 30, 47 U.S.C. § 230(c)(1)
25
Thoma v Luxembourg ECHR 2001-III 67, para 62
26
Compromis 5.1
27
n 22,23 and 25
28
Compromis 5.1
29
Council Directive 2000/31/EC of 8 June 2000 on certain legal aspects of information society services, in
particular electronic commerce, in the Internal Market ("Directive on electronic commerce") [2000] OJ L178/1,
para 42.
30
Delfi AS v Estonia App No 64569/09 (ECtHR, 16 June 2015), para 7.
31
Ibid.

7
1B.2. Private Entities should not be burdened with censoring contents generated by its
users
Regarding the issue of censorship of user generated contents in an online forum, the

UN Special Rapporteur on freedom of expression stated that censorship measures should

never be delegated to a private entity and no one should be held liable for content on the

internet of which they are not the author.32

It was further recommended that, in order to avoid infringing internet users‘ right to

freedom of expression and right to privacy, intermediaries should only implement restrictions

to these rights after judicial intervention; that intermediaries should be transparent about

measures taken with the user involved and, where applicable, with the wider public; that they

should provide, if possible, forewarning to users before implementing restrictive measures;

and they should strictly minimize the impact of any restrictions to the specific content

involved.33 Finally, the Special Rapporteur has emphasized the need for effective remedies

for affected users, including the possibility of appeal using procedures to be provided by the

intermediary and by a competent judicial authority. 34

In this case, Kola‘s staff attempted to notify SCOOPS through SCOOPS‘ online

reporting form as a violation of SCOOPS‘ terms of service, they did not complete the form,

instead Kola‘s legal counsel served a legal notice, which did not comply with SCOOPS

policy nor such action is mandated in any statute in Turtonia‘s jurisdiction. The impugned

conviction of SCOOPS has essentially created a burden to force the platform operator to take

additional precautions to protect itself from liability. In the US jurisdiction, it has been held

that interactive internet platforms should be allowed to self-regulate the dissemination of

offensive material over their services.35 Monitoring each post would require specific software

32
Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and
expression, 16 May 2011, A/HRC/17/27, para. 43.
33
Ibid, para- 47.
34
Ibid.
35
Zeran v America Online, Inc129 F.3d 327, 331 (4th Cir. 1997).

8
to screen the large amount of information contributed to the forum.36However, forcing a

platform to utilize software to monitor third party posts violates the platform‘s protection of

privacy and freedom of expression.37 Forcing a platform operator to install a system to filter

electronic communication using its services is improper38 because the high cost of a

complicated computer system would seriously infringe on the freedom of the platform

operator to conduct its business.39 A website operator is protected in its right to privacy to

determine how to run its own forum without government imposition.40 This sentiment was

held by the concurring justices of the ECHR in the case of Delfi As v. Estonia where it was

held that finding a news portal liable for not having ―prevented‖ the publication of user-

generated comments would in practice imply that the portal would have to pre-monitor each

and every user-generated comment in order to avoid liability for any unlawful comments.41

The court also viewed that forcing an internet forum to monitor every post could lead to a

disproportionate interference with the news portal‘s freedom of expression.42

International principles draw a line between the user generated content on online

platform and the conduit by which it is disseminated.43SCOOPS is acting as an intermediary

for content generated by PEAPS, just as it does for many Turtonians every day. If SCOOPS

was held liable for every message created and shared by its users, served with thousands of

legal notices like Kola‘s and is bound to respond every single notice it would find itself

36
Delfi AS v Estonia App No 64569/09 (ECtHR, 16 June 2015), para 7.
37
Ibid
38
Scarlet Extended NV v SABAM (2011) Case C-70/10 ECR I- 12006, para 5
39
Ibid
40
Ibid
41
Delfi AS v Estonia App No 64569/09 (ECtHR, 16 June 2015)
42
Ibid
43
Delfi AS v Estonia App No 64569/09 (ECtHR, 16 June 2015), para 7; Council Directive 2000/31/EC of 8 June
2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal
Market ("Directive on electronic commerce") [2000] OJ L178/1, paras 42-43

9
unable to continue offering an essential platform for the dissemination of ideas, opinions,

news and information. Such procedure of ―notice and takedown‖ as provided in Point- 2(b) of

The Joint Declaration on Freedom of Expression and Internet E-commerce Directive.44 These

procedures have also been criticized for being unfair. Rather than obtaining a court order

requiring the host to remove unlawful material (which, in principle at least, would involve an

independent judicial determination that the material is indeed unlawful), hosts are required to

act merely on the say-so of a private party or public body.45

For example, in his report, the UN Special Rapporteur on freedom of expression

noted that while a notice-and-takedown system is one way to prevent intermediaries from

actively engaging in on their services, it is subject to abuse by both State and private actors

and users who are notified by the service provider that their content has been flagged as

unlawful often have little recourse or few resources to challenge the takedown.46 Moreover,

given that intermediaries may still be held financially or in some cases criminally liable if

they do not remove content upon receipt of notification by users regarding unlawful content,

they are inclined to err on the side of safety by over censoring potentially illegal content.

Furthermore, intermediaries, as private entities, are not best placed to make the determination

of whether a particular content is illegal, which requires careful balancing of competing

interests and consideration of defenses.47

SCOOPS is merely a conduit, as it does not initiate the transmission of messages,

does not select the author of the messages posted on its site, and does not modify, control, or

select the content of the messages. It is also not an authority to determine the potential

44
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects
of information society services, in particular electronic commerce, in the Internal Market
45
ARTICLE-19, Defending Freedom of Expression and Information.
<https://www.article19.org/data/files/Intermediaries_ENGLISH.pdf> accessed on 20 December 2017
46
UN Special Rapporteur on Freedom of Expression A/66/290, 10 August 2011, para 42
47
Ibid

10
illegality of any user generated content. Holding SCOOPS liable would not only go against

the cherished right of freedom of expression as provided in various International instruments

but also would weaken any democratic nation‘s right of expression.

11
ISSUE 2A: TURTONIA‟S PROSECUTION OF PEAPS UNDER THE IA VIOLATES ARTICLE 19 OF

THE ICCPR

2A.1. PEAPS did not violate the IA

‗The right to freedom of expression is of paramount importance in any democratic

society‘. Limiting speech creates a ‗barren marketplace‘ of ideas and opinions. Applicants

claim that PEAPS‘s blog post falls within the scope of Article 19. The scope of this article

protects freedom of expression through any media, including blog posts. It was stated by the

US Supreme Court in Reno v ACLU48 that freedom of expression extends to the ideas shared

on the Internet. Furthermore, the ECtHR held in Handyside v United Kingdom49 that speech

that shocks, offends or disturb is also protected.

‗The government may not prohibit the expression of an idea simply because society

finds the idea itself offensive or disagreeable.‘ Accordingly, speech is presumptively

protected under international law, and exceptions to this general principle should be

interpreted narrowly.

Historically, an individual is allowed to have a degree of exaggeration, or even

provocation,50 when making statements in public debate. In an on-going debate regarding

issues critical to the national interest, a government must allow individuals to freely exchange

and express ideas and information, regardless of its palatability. This is precisely the situation

in the present case. In the past three years, Turtonia has seen a significant flux of immigrants

from Aquaria who are affecting the economy and culture of Turtonia. But Kola has been

generous to the Aquarians. The ICCPR states that ‗Any advocacy of national, racial or

religious hatred that constitutes incitement to discrimination, hostility or violence shall be

48
521 U.S. 844
49
1 EHRR 737 (1979)
50
Ziembinski v Poland (No 2) ECHR 1799/07 (5 Jul 2016)

12
prohibited by law‘. In the disputed post Peep neither resorted to any violence nor advocated

national, religious and racial hatred.

2A.2. The prosecution was unjustified

Applicants submit that the restriction on Peeps‘s freedom of expression is not justified under

Article 19(2). According to the three-part test, a restriction is justified if it is i) prescribed by

law, ii) pursues a legitimate aim and iii) is necessary in a democratic society. 51 In the present

case the restriction is not prescribed by law and is not necessary in a democratic society.

2A.2.1. The restriction is not prescribed by law

2A.2.1.1. The law is not precise

To be sufficiently precise, a law must be formulated to enable a person to regulate his

conduct and reasonably foresee the consequences of a given action. Further, a law must

define the key terms such as ‗hatred‘, ‗public confidence‘ and avoid granting unfettered

discretion to those who are administering the law.

The holding of Section 1(b) of IA is impermissible because it applies imprecise

legislation; individuals are unable to anticipate consequences of noncompliance or regulate

their conduct accordingly. Section 1(b) fails to define what expression constitutes ―damage

the national unity‘ or ―hatred‖ and therefore a person reasonably foresee what behavior

violates Section 1(b). This vague language grants the Turtonian government ―unfettered

discretion‖ to hold PEAPS liable and prosecute him under the IA Act.

2A.2.1.2. The restrictions of IA are overbroad restrictions on speech

Overbroad restrictions on freedom of expression are invalid. Each person has a right to hold

and articulate opinions. When a State party imposes restrictions on the exercise of freedom of

expression, these may not put in jeopardy the right itself. The government‘s interest in public

order must be balanced against the people‘s interest in preserving free expression.

51
ibid

13
 Furthermore, the ECtHR in Axel Springer52 held that chilling effect occurs when a

person or media restrains from imparting information or ideas of public interest in fear of

criminal or other sanctions. As explained above, the provisions of the IA are too vague.

Ultimately, people, especially activists like PEAPS will be restrained from imparting

information. Moreover, it will lead to a chilling effect on free flow of information in society.

2A.2.2. The damages imposed were not necessary in a democratic society

Interference is necessary in a democratic society if it corresponds to a) a pressing

social need and b) is proportionate.

2A.2.2.1. There was no pressing social need.

Determining a pressing social need requires a fair balance between the general and

individual interests at stake. In the present case, a balance must be made between the freedom

of expression of an individual and the public figures right to privacy and attacks upon their

reputation.

The ECtHR stated in Von Hannover v Germany53 that a state has to assess certain

criteria when restricting the right to freedom of expression. Firstly, it must be determined

how well-known is the person, since public and private persons have different expectation of

privacy.Public interest includes not only debate on political matters and public officials but

also everyday activities of public figures. As stated in New York Times v Sullivan54by the US

Supreme Court public figures have lesser expectation of privacy and should tolerate a greater

degree of criticism. In the present case Kola is the Immigration Minister of Turtonia.

Therefore, her relationship with Parkta, a wanted absconded criminal is an issue of critical

national interest and here no right to privacy has been violated.

52
ECHR 39954/08 (7 Feb 2012)

53
Von Hannover v Germany (2005) 40 EHRR 1
54
New York Times v Sullivan 376 U.S. 254 (1964)

14
2A.2.2.2. The damages are not the least restrictive measure

Applicants submit that the imposed damages are not least restrictive. As stated by the

IACtHR in Herrera Ulloa v Costa Rica55, a measure cannot be qualified as least restrictive

simply because it was useful or desirable. On the contrary, any restriction must be as minimal

as possible.

Applicants claim there were several less restrictive measures available for the protection of

Kola privacy and reputation. This damages will lead to a chilling effect and thus violating

freedom of expression.

2A.3. PEAPS‟ post on SCOOPS was not hate speech

Freedom of expression is highly protected in international courts and is only restricted in

extremely narrow circumstances. Speech is still protected even if it embarrasses or coerces

others into action. ‗Fear of serious injury cannot alone justify suppression of free speech.‘ In

RAV v City of St. Paul, Minnesota56 The U.S Supreme Court held that the ordinance had been

interpreted as applying only to "conduct that itself inflicts injury or tends to incite immediate

violence". In Whitney v. California it was held that direct advocacy involved such a danger of

substantive evil that it may be penalized and noting that such statements do so by their very

nature. The formula not only requires an intention to incite and a likelihood that the advocacy

will incite unlawful action, which had been the primary focus of criticism of the

"reasonableness" test, but also that the likely unlawful action be imminent.57

Here, PEAPS‘ post neither advocated Kola‘s resignation nor incited any people to kill

Acquarian immigrants because there is no indication of incitement. PEAPS did not

55
Herrera Ulloa v Costa Rica [2004] IACHR 3, IACHR Series C No 107
56
R.A.V. v City of St. Paul, Minnesota 505 U.S. 377 (1992)
57
Brandenburg v Ohio 395 US 444 (1969)

15
recommend resignation, nor did he discuss resorting to violence. Therefore, there was no

direct advocacy for lawless action.

16
 ISSUE 2B: PROSECUTION OF SCOOPS UNDER IA VIOLATES ARTICLE 19 OF THE

ICCPR

2B.1. IA is violative to article 19

2B.1.1. IA Debars freedom of expression

Article 19 of ICCPR ensures freedom of expression and opinion ‗without interference‘.

Freedom of expression includes all forms of expressions including matters of internet.

SCOOPS creates a platform for people to hold their opinion and express it in public. Making

SCOOPS liable for any individual‘s opinion and prosecuting SCOOPS for this is violation of

freedom of expression and ‗a grave interference‘ in that as provided in Article 19. As a

corporate body SCOOPS it is a legal entity having the right of imparting opinion. The ECtHR

held in Autronic58 that Article 10 of the ECHR applies to ―everyone‖, whether natural or legal

persons, and concerns not only the content of the information but also the means of

transmission or reception. Prosecuting SCOOPS for the same reason is directly violative to

article 19.

2B.1.2. Law itself is vague and ambiguous

‗Restrictions provided by law‘ requires the law to be sufficiently precise that enable a citizen

to regulate one‘s conduct accordingly.59 IA states that, ‗any individual, organization or other

publisher may not knowingly communicate which he knows to be false.‘ Here ‗knows it to be

false‘ is a vague term. What may appear true to one can be false to the other and unknowing

communication derived from such issue can cause threat to other‘s dignity.

Moreover in clause (b) it provides that, no communication shall be made that deprives

person of the benefits of public confidence and social acceptance. The Judicial Committee of

the Privy Council held that a criminal law provision violated the Constitution of Antigua and

58
Autronic v Switzerland [1990] ECHR 12, 12726/87
59
de Groot v The Netherlands Communication No 578/1994 UN Doc CCPR/C/54/D/578/1994 (1995)

17
Barbuda to the extent that it made the printing or distribution of any false statement which

was likely to "undermine public confidence in the conduct of public affairs" a criminal

offence. As stated by Lord Bridge:

―In the light of these considerations their Lordships cannot help viewing a statutory

provision which criminalises statements likely to undermine public confidence in the

conduct of public affairs with the utmost suspicion.‖

But the clause gives that anything in contradiction with their fame or unwelcoming their

status should not be posted by any people using any media. SCOOPS used to be among the

fewest of the platforms where people could express their opinion regarding their actions. But

this provision is contravening the ICCPR Article 19 and also such prosecution dissolves the

accountability of the public persons and gives them an unjustified shield of protection and

also obstructs criminal reporting against their interest.

2B.2. SCOOPS falls within the immunity clause of OSP of IA

OSP is immune of liability for transmitting, caching or storing material at a user‘s direction 60

where it meets all the condition mentioned in IA. SCOOPS fulfils all requirements for getting

immunity under the law.

i. SCOOPS does not receive any financial benefit to the infringing activity that was

posted by Peeps ‗visa for sex‘ coverage.

ii. SCOOPS is the most popular social media platform having a wide number of

users in Turtonia who post stories and spread it among the other users. It is not

possible to surveillance all the post that are pass out from the users and their

contents. Because SCOOPS is the mere platform of networking having digitalized

system which does not contain any manual supervision over each posts and

contents. So it is impossible for this platform to know whether any activity has

60
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects
of information society services, in particular electronic commerce, in the Internal Market, art 14.

18
 made any infringement of any individual. It plays the role as a host intermediary,

which is neutral, mere technical and passive.

iii. SCOOPS can not remove any controversial content voluntarily unless and until it

has been brought to the knowledge of its authority. After the submission of the

complaint by the legal counsel of Kola SCOOPS removed the post and all shares

of the post. Therefore, the access to the material was disabled by SCOOPS

expeditiously after it has been given notification according to the law.

2B.2.1. Turtonia does not enjoy wide margin of appreciation’ in this case

The Communications Decency Act of 1996 provides that ―No provider or user of an

interactive computer service shall be treated as the publisher or speaker of any information

provided by another information content provider. The column of PEAPS posted in

SCOOPS is open to political argument and discussion which is required for public interest

Debate on public issue should be inhibited, robust and wide-open. Thus Turtonia enjoys

narrower margin of appreciation in restricting freedom of expression of SCOOPS.

2B.2.2. Even if it is marginal, it is still disproportionate

Proportionality requires that states place no greater limitations on rights than necessity to

achieve the legitimate aim.61 The nature and severity of the punishment are relevant in

determining the proportionality pursued to the legitimate aim. The fine was disproportionate

as SCOOPS is a mere passive intermediary. In the ECtHR case of Delfi v Estonia62, the

intermediary was only fined 320 euros, despite being both an active intermediary and also

having significant financial strength as a ‗one of the largest internet news portals in Estonia‘

Similarly, Twitter was fined US$ 51,000 by Turkey for refusing to remove ‗terrorist

propaganda‘ despite being asked to do so. The US$ 200,000 fine was disproportionate as

61
Velichkin v Belarus Communication No. 1022/2001, UN Doc CCPR/C/85/D/1022/2001 (2005)
62
Delfi AS v Estonia (2015) ECtHR 64669/09

19
SCOOPS is a passive intermediary Furthermore, while SCOOPS may be the most popular

social media platform in Turtonia, the fine of US$ 200,000 under ODPA and again of 100,00

US$ under IA is excessive in comparison to the punishments imposed by other states. Many

states have stipulated maximum punishments of US$ 1,500–100,000 in their legislation.

2B.3. Prosecuting SCOOPS does not serve the purpose of IA complying with article 19

2B.3.1. There was no pressing social need

According to the Delfi case63 the following factors are to be considered in determining the

existence of a pressing social need to impose liability on intermediaries: the nature of the

intermediary; notice of its user content; and the nature of the content. At the first place,

SCOOPS is a passive intermediary. Secondly, it does not have tools to regulate the user‘s

content prior to its being reported because millions of stories are posted everyday with this

gateway. for the billions of web files they continually copy in the act of transmission,

legislators in the US and European Union have held that only a limited liability holds for

these intermediaries, typically OSPs.

2B.3.2. There was no threat to national security or public order effectuated by SCOOPS

Claim of ‗national security‘ cannot be invoked since it may be invoked only when country‘s

existence or its territorial integrity fall on risk because of the use or threat of force. 64 The

column did not pose any threat or danger to the national security of Turtonia. Moreover, the

image was created by another website called Turton power an extremist group which PEAPS

also referred to be published in XYZ News which gave him the impression the story to be

true as a subscriber. Therefore, liability of violence or public order even if arise, it goes to

Turton power for giving such a false appreciation not over SCOOPS.

63
ibid
64
Article 19, The Johannesburg Principles on National Security, Freedom of Expression and Access to
Information, 1 October 1995.

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2B.4. SCOOPS is an intermediary

SCOOPS plays the role as a host intermediary, which is neutral, mere technical and

passive65. A facilitator, like SCOOPS, is fulfilling its function as a disseminator of all

information provided to it, and cannot be held liable for a specific message in its routine

practice. In acknowledging this difficulty, states have thus assisted intermediaries in

regulating content. In practice States in most cases only hold intermediaries liable for

refusing to remove content upon a government request or court order. Furthermore, social

media posts often attract debate and counter-narratives,66 thereby making it more difficult for

intermediaries to determine the legality of such posts.

65
Google France v Louis Vuitton Malletier and others C-236/08 to C-238/08 of 23 March 2010, para 114; see
also Delfi AS v Estonia App no 64569/09 (2015) paras 52, 128.
66
Ruth A Harper, The Social Media Revolution: Exploring the Impact on Journalism and News Organizations
(2010) vol 2 no.3 <http://www.inquiriesjournal.com/articles/202/the-socialmedia-revolution-exploring-the-
impact-on-journalism-and-news-media-organizations> accessed 15 October 2016; ‗The Social Media
Revolution: Exploring the Impact on Journalism and News Media Organization Haewoon Ha Kwak, Changhyun
lee, Hosung Park, Sue Moon, ―What is Twitter, a Social Network or a News Media‖, Department of Computer
Science, KAIST.

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 RELIEF SOUGHT

In the light of the arguments presented and the authorities cited, Niam Peaps and Scoops

respectfully request this Court to adjudge and declare that:

A. Turtonia's prosecution of Peaps under the ODPA violates Article 19 of the ICCPR.

B. Turtonia's prosecution of Scoops under the ODPA violates Article 19 of the ICCPR.

C. Turtonia's prosecution of Peaps under the IA violates Article 19 of the ICCPR.

D. Turtonia's prosecution of Scoops under the IA violates Article 19 of the ICCPR.

On behalf of the Applicants,

Team 229A

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