The Oxford Price Media Law Moot Court COMPETITION 2016-17: Memorial For The Respondent

219R
THE OXFORD PRICE MEDIA LAW MOOT COURT

COMPETITION 2016-17
BALLAYA & SEESEY
(APPLICANTS)
AMOSTRA
(RESPONDENT)
MEMORIAL FOR THE RESPONDENT
WORDS: 4787
TABLE OF CONTENTS
LIST OF ABBREVIATIONS……………………………………………………….IV
LIST OF AUTHORITIES…………………………………………….…………….VI
STATEMENT OF RELEVANT FACTS………………………………………….XXVI
STATEMENT OF JURISDICTION……………………………………………….XXX
QUESTIONS PRESENTED…………………………………………..…………....XXXI
SUMMARY OF ARGUMENTS…………………………………………………….XXXII
ARGUMENTS…………………………………………………………………………1 - 31
A. AMOSTRA’S PROSECUTION OF BALLAYA UNDER THE SIA DID NOT VIOLATE
INTERNATIONAL PRINCIPLES, INCLUDING ARTICLE 19 OF THE UNIVERSAL DECLARATION OF
HUMAN RIGHTS (“UDHR”) AND ARTICLE 19 OF THE INTERNATIONAL COVENANT ON CIVIL
AND POLITICAL RIGHTS (“ICCPR”)………………………………………………….........................01
I. Prosecution of Ballaya under the ESA is consistent with Article 19 of the
UDHR and the ICCPR……………………………………………………02
a. Ballaya’s column “An Open Letter to the Oppressors” constitutes hate
speech………………………………………………………………………02
II. The restriction is permissible under article 29 of the UDHR and article 19 of
the ICCPR…………………………………………………………………05
a. The restriction must be prescribed by law…………………………….05
(i) The SIA is sufficiently precise…………………………………06
(ii) The SIA has adequate safeguard………………………………..08
b. The restriction has legitimate aim for protecting public order……….08
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c. The interference with free speech was necessary on a democratic
society……………………………………………………………………09
(i) The limitations serve a pressing social need…………………….10
(ii) The restriction is proportionate to the legitimate aim pursued….11
ISSUE B: AMOSTRA’S PROSECUTION OF BALLAYA UNDER THE ESA DOES NOT
VIOLATE INTERNATIONAL PRINCIPLES INCLUDING ARTICLE 19 OF UDHR
AND ARTICLE 19 OF THE ICCPR…………………………………………………….12
I. Amostra can exercise wide margin of appreciation regarding Ballaya’s
speech……………………………………………………………………………………….13
II. Prosecution of Ballaya is justified and permissible under article 29(2) of
UDHR……………………………………………………………………………………14
a. The Prosecution was Prescribed by Law……………………………………..15
b. The prosecution was in pursuance of a legitimate aim……………………….16
c. The prosecution was necessary in a Democratic Society and was proportionate to
the aim pursued……………………………………………………………….17
ISSUE- C: AMOSTRA HAS JURISDICTION TO OBTAIN AND ENFORCE THE CIVIL
ORDER AGAINST SEESEY IN AMOSTRA AND SARRANTO……………………….18
I. The rule of sovereign territorial jurisdiction is not absolute……………..18
II. Subsidiary and parent company shall be considered a same legal entity for
jurisdictional purpose………………………………………………………..20
III. Nature of SeeSey constituted ‘minimum contact’ with forum state and
targeted the forum state Amostra…………………………………………..21
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(a). Nature of SeeSey website is interactive enough to constitute
‘minimum contact’ with forum state required for exercising personal
jurisdiction.....................................................................................................21
(b). SeeSey has targeted the forum state Amostra………………….22
ISSUE-04: AMOSTRA’S CIVIL ORDER AGAINST SEESEY DOES NOT VIOLATE
INTERNATIONAL PRINCIPLES, INCLUDING ARTICLE 19 OF THE UDHR AND
THE ICCPR………………………………………………………………………………….24
I. Civil order is consistent with article 19 of the UDHR and the ICCPR………24
a. Civil order to take down any unlawful content can be imposed upon the
intermediary……………………………………………………………………25
b. The civil order has no chilling effect………………………………………......27
II. Civil order is permissible under article 29(2) of UDHR……………………….28
a. Restriction by civil order is prescribed by law…………………………………28
b. Restriction by civil order is in pursuant of legitimate aim……………………..30
c. Restriction is necessary in a democratic society……………………………….31
PRAYER ………………………………………………………………………………………33
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LIST OF ABBREVIATIONS
ACHR American Convention on Human Rights
ACHPR African Charter on Human and Peoples’ Rights
ACtHPR African Court on Human and Peoples’ Rights
AD Appellate Division
AfCHR African Charter on Human and People’s Rights
AHRLR African Human Rights Law Reports
AIR All India Reports
App No Application Number
Doc Document
EC European Council
ECHR European Convention on Human Right
ECtHR European Court of Human Rights
ECR European Court Reports
EHR European Human Rights Reports (Strasbourg)
EHRR European Human Rights Reports
ESA Election Safety Act of 2016
EU European Union
FOE Freedom of Expression
GC General Court
HCD High Court Division
HRC Human Rights Committee
IACHR Inter-American Commission on Human Rights
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IACtHR Inter-American Court of Human Rights
ICCPR International Convention on Civil and Political Rights
ICERD International Convention on the Elimination of All Forms of
Racial Discrimination
ICESCR International Covenant Economic, Social and Cultural Rights
ILM International Legal Materials
IP Internet Protocol
ISPs Internet Service Providers
OECD Organization for Economic Co-operation and Development
prin Principle
Res Resolution
SC Supreme Court
SCC Supreme Court Cases
SIA Stability and Integrity Act of 2014
SCR Supreme Court Reports
UDHR Universal Declaration of Human Rights
UNCHR United Nations Commission on Human Rights
UNHCR United Nations Commission of Human Rights
UNGA United Nations General Assembly
UNTS United Nations Treaty Series
US United States
UK United Kingdom
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LIST OF SOURCES/AUTHORITIES
DECLARARTIONS, TREATIES AND CONVENTIONS
UDHR (adopted 10 December 1948) UNGA Res 217A (III) 01, 02, 12, 23
ECHR (adopted 4 November 1950, entered into force 3 September 1953)
213 UNTS 1932 12, 23, 29
ICCPR (adopted 16 December 1966, entered into force 23 March 1976)
999 UNTS 171 01, 02, 12, 23
ACHR (adopted 22 November 1969, entered into force 18 July 1978) 01, 12, 14, 23
ACHPR (adopted 27 June 1981, entered into force 21 October 1986)
(1982) 21 ILM 58 01, 05, 12, 23
ICERD (adopted 21 December 1965, entered into force 4 January 1969) 03
American Convention of Human Rights (adopted 22 November 1969, entered into force 18 July
1978) 1144 UNTS 123 12, 13, 23, 27
African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21
October 1986) (1982) 21 ILM 58 (AfCHR) 02, 15, 27
STATUTE:
The Public Order Act 1998 (UK) 03
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Digital Millennium Copyright Act, 1998 (USA) 25
Act on Promotion of Information and Communication Network Utilization and Information
Protection (amended in 2002) (Copyright Act 2009) 25
The Defamation Act, 2013(K) 25
Restatement (3rd) of Foreign Relations Law of the United States,
Section 421(1986) 18
CASES FROM IACtHR
Francisco Matorell v Chile (IACtHR, 3 May 1996) 14
Herrera-Ulloa v Costa Rica, (IACtHR, 2 July 2004) 05, 14, 27
Plan de Sánchez Massacre v Guatemala (IACtHR, 23 April 2004) 29, 30
Palamara-Iribarne v Chile (IACtHR, 22 November 2005) 31
Ricardo Canese v Paraguay (IACtHR, 31 August, 2004) 01, 05
Rios et al v Venezuela (IACtHR, 28 January, 2009) 14
Tristán Donoso v Panamá (IACtHR, 27 January, 2009) 01, 17
CASES FROM ACommHPR
African Institute for Human Rights and Development v Guinea AHRLR 57 Communication no
249/2002 (ACommHPR, 7 December 2004). 10
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Interights v Mauritania AHRLR 87 Communication no 242/2001
(ACommHPR, 2004) 05
Zimbabwe Lawyers for Human Rights & Institute for Human Rights and Development in Africa
v Zimbabwe AHRLR 268 Communication no 294/04 (ACommHPR, 2009) 05, 30
CASES FROM ACHPR
Zegveld v Eritrea (2003) AHRLR 84 (ACHPR 2003) 01
Zimbabwe Human Rights NGO Forum v Zimbabwe (2006)
AHRLR 128 (ACHPR 2006) 31
CASES FROM UNITED STATES
Abrams v Unites States 250 US 616 (1919) 30
Beauharnais v Illinois 343 US 250,342–43 (1952) 08
Bank of America v Whitney Cent. Nat. Bank 261 US 171(1923) 20
Brandenburg v Ohio 395 US 444 (1969) 04
Cantwell v Connecticut 310 US 296 (1940) 13, 18
Chaplinsky v New Hampshire 315 US 567 (1941) 23, 27
Gompers v Buck's Stove & Range Co. 221 US 418 (1911) 29
Ginsberg v New York 390 US 629 (1968) 01, 17
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Grayned v City of Rockford 408 US 104 (1972) 06
Hsin Ten Enterprise USA, Inc. v Clark Enterprises
138 F. Supp. 2d 449 (S.D.N.Y. 2000) 21
Hilton v Guyot 159 US 113 19
Los Angeles v Lyons 461 US 95 (1983) 26
Melvin R Laird v Arlo Tatum 408 US 1 (1972) 26
Meese v Keene 481 US 465 (1987) 26
Nebraska Press Association v Stuart 427 US 539 (1976) 31
O'Shea v Littleton 414 US 488 (1974) 26
Roth v United States 354 US 476 (1957) 23
Schenk v United States 249 US (1919) 03
Shelton v Tucker 364 US 479 (1960) 31
Terminiello v City of Chicago 93 L. Ed. 1131 (1949) 29
The Sports Auth. Michigan, Inc. v Justballs, Inc. 97
F. Supp. 2d 806 (E.D. Mich. 2000) 22
Virginia v Black 538 US 343 (2003) 13, 29
Wahitney v California 274 US 357 (1927) 03
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Ward v Rock 491 US 781 (1989) 01
Watts v United States 394 US 705 (1969) 29
CASES FROM INDIA
District Registrar & Collector, Hyderabad v Canara Bank AIR 2005 SC 186 31
Devidas Ramchandra Tuljapurkar v State of Maharashtra
(Criminal Appeal No. 1179 of 2010) (2015, SCC) 23
Dinesh Trivedi v Union of India (1997) 4 SCC 306 27
Gobind v State of MP AIR 1975 SC 1378 30
Ramji Lal Modi v State of Uttar Pradesh AIR 1957 SC 620 13
Samresh Bose and Anr v Amal Mitra and Anr (1985) 4 SCC 289 23
S. Rangarajan v P. Jagjivan & Ors (1989) 2 SCC 574 29
Sahara India Real Estate Corpn. Ltd. v SEBI (2012) 10 SCC 603 23
State of West Bengal v Subodh Gopal Bose AIR 1954 SC 92 27
CASE FROM HRC
Albert Womah Mukong v Cameroon Communication No 458/1991, UN Doc
CCPR/C/51/D/458/1991 (1994) (HRC) 05, 27
Toonen v Australia Communication No 488/1992
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Doc CCPR/50/D/488/1992 (1994) (HRC) 17, 31
Malcolm Ross v Canada UN Doc
CCPR/C/70/D/736/1997 (HRC, 18 October 2000) 05, 08 10
Sohn v Republic of Korea UN Doc
CCPR/C/54/D/518/1992 (HRC, 19 July 1995) 05
Velichikn v Belarus UN Doc CCPR/C/85/D/1022/2001 (HRC, 20 October 2005) 05
CASES FROM BANGLADESH
Mostafizur Rahman v Bangladesh and others (1991) 20 CLC (HCD) 23
Md. Riazuddin Khan and another v Mahmudur Rahman(2010) 39 CLC (AD) 23
State v Chief editor, Manabjamin and others (2005) 57 DHR (HCD) 359 23
CASES FROM EHRR
Association Ekin v France (2002) 35 EHRR 35 08
Ceylan v Turkey (2000) 30 EHHR 73 08
Kruslin v France (1990) 12 EHRR 546 11
Leander v Sweden (1987) 9 EHRR 433 14
Metropolitan Church of Bessarabia v Moldova (2002) 35 EHRR 306 07
Murphy v Ireland (2004) 38 EHRR 212 09, 26
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Malone v UK (1984) 7 EHRR 14 06, 08, 28
Refah Partisi v Turkey (2003) 37 EHRR 1 01
The Sunday Times v United Kingdom (1979-80) 2 EHRR 245 05, 06 10, 27
Worm v Austria (1997) 25 EHRR 454 27
Zana v Turkey (1997) 27 EHRR 667 30
CASES FROM ECtHR
Aleksey Ovchinnikov v Russia App no 24061/04 (ECtHR, 16 December 2010) 07
Ahmet Yıldırım v Turkey App no 3111/10 (ECtHR, 18 December 2012) 06
Alinak v Turkey App no 40287/98 (ECtHR, 29 March 2005) 09
Balsyte-Lideikiene v Lithuania App no 72596/01 (ECtHR, 4 December 2008) 10
Christine Goodwin v UK App no 28957/95 (ECtHR, 11 July 2001) 18
Cossey v UK App no 10843/84 (ECtHR, 27 September 1990) 18
Chassagnou and others v France App nos 25088/94, 28331/95 and 28443/95 (ECtHR, 29 April,
1999) 10
Centro Europa 7 S R L and Di Stefano v Italy
App no 38433 (ECtHR, 7 June 2012) 07
Ceylan v Turkey App no 23556/94 (ECtHR 8 July 1999) 08, 14
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Chauvy and others v France App no 64915/01 (ECtHR, 29 September 2004) 09
Cumpănă and Mazăre v Romania
App no 33348/96 (ECtHR, 17 December 2004) 09
Delfi AS v Estonia App no 64569/09 (ECtHR, 10 October 2013) 07, 09, 10, 15
Editorial Board of Pravoye Delo and Shtekel v Ukraine App no 33014/05 (ECtHR, 5 August
2011) 06
Erbakan v Turkey App no 59405/00 (ECtHR, 6 July, 2006) 03
Gaweda v Poland App no 26229/95 (ECtHR, 14 March 2002) 05, 15, 28
Gourguenidze v Georgia App no 71678/01 (ECtHR, 17 October 2006) 07
Gurtekin v Cyprus App nos 60441/13, 68206/13, 68667/13
(ECtHR, 11 March 2014) 08, 16
Gunduz v Turkey App no 3571/97 (ECtHR, 4 September 2003) 09
Handyside v UK App no 5393/72 (ECtHR, 7 December 1976) 14, 17, 30, 31
Hatton v UK App no 36022/97 (ECtHR, 8 July 2003) 11
Hinczewski v Poland App no 34907/05 (ECtHR, 5 October 2010) 15, 28
Huvig v France App no 11105/84 (ECtHR, 24 April 1990) 08
Jersild v Denmark App no 15890/89 (ECtHR, 23 September 1994) 17
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Klass v Germany App no 5029/71 (ECtHR, 6 September 1978) 08, 11, 16
Karatas v Turkey App no 23168/94 (ECtHR, 8 July 1999) 03
Karhuvaara and Iltalehti v Finland App no 53678/00 (ECtHR, 16 Feb 2005) 15
Kokkinakis v Greece App no 14307/88 (ECtHR, 25 May 1993) 07, 16
Kruslin v France App no 11801/85 (ECtHR, 24 April 1990) 08
Kwiecień v Poland App no 51744/99 (ECtHR, 9 January 2007) 11
Lambert v France App no 46043/14 (ECtHR, 5 June 2013) 11
Liu v Russia (no 2) App no 29157/09 (ECtHR, 26 July 2011) 08
Lindon, Otchakovsky-Laurens and July v France
App no 21275/02 (ECtHR, 22 October 2007) 07
Leroy v France App no 36109/03 (ECtHR, 2 October 2008) 11
Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v Hungary App no 22947/13 (ECtHR,
2 February, 2016) 19
Malone v UK App no 8691/79 (ECtHR, 2 August 1984) 06, 08
Müller v Switzerland App no 10737/84 (ECtHR, 24 May 1988) 07, 16
Murat Vural v Turkey App no 9540/07 (ECtHR, 21 January 2015) 11, 15
News Verlags GmbH & Co KG v Austria App no 31457/96
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(ECtHR, 11 April 2000) 10
Ozgur Gundem v Turkey App no 23144/92 (ECtHR, 16 March 2000) 18
Perincek v Switzerland App no 27510/08 (ECtHR, 15 October 2015) 04, 10
Rekvényi v Hungary [1999] App no 25390/94 (ECtHR, 20 May 1999 05, 15, 28
Salov v Ukraine App no 65518/01 (ECtHR 6 September 2005) 11
Şener v Turkey App no 26680/95 (ECtHR, 18 July 2000) 11
Sürek (No 3) v Turkey App no 24735/94 (ECtHR, 8 July 1999) 11
Soulas v France App no 15948/03 (ECtHR, 10 July 2009) 04, 11
S and Marper v UK App no 30562/04 and
30566/04 (ECtHR, 4 December 2008) 10
Silver v UK App nos 5947/72, 6205/73, 7052/75, 7061/75, 7107/75, 7113/75, 7136/75 (ECtHR,
25 March 1983) 06, 08
The Sunday Times v United Kingdom App no
13166/87 (ECtHR, 26 November 1991) 06
Uzun v Germany App no 35623/05 (ECtHR, 2 September 2010) 08, 16
Vejdeland v Sweden App no 1813/07 (ECtHR, 9 February 2012) 13
Worm v Austria App no 22714/93 (ECtHR, 29 August 1997) 23, 27
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Weber and Saravia v Germany App no 54934/00 (ECtHR, 29 June 2006) 06
Z v Finland App no 22009/93 (ECtHR, 25 February 1997) 10
Ždanoka v Latvia App no 58278/00 (ECtHR, 16 March 2006) 11
CASES FROM ECHR
Sürek v Turkey App no 26682/95 (ECHR, 8 July 1999) 30
Silver and Others v United Kingdom App no 6205/73
(ECHR, 24 September 1982) 05, 15, 27
Doğan v Turkey App no 50693/99 (ECHR, 10 January 2006) 08
Dogan and others v Turkey App no 8803-8811/02, 8813/02 and 8815-8819/02 (ECHR, 12
February and 10 June 2004) 22
Goodwin v The United Kingdom App no 28957/95 (ECHR, 11 July 2002) 27
Handyside v United Kingdom App no 5493/72 (ECHR, 7 December 1976) 14, 17, 30
Mc Vicar v The United Kingdom App no 46311/99 (ECHR, 7 May 2002). 18
The Observer and the Guardian v United Kingdom App no 13588/88 (ECHR, 26 November
1991) 17
CASES FROM OTHERS JURISDICTIONS
Buie v Chicago R. I. & P, Ry. Co. (1901) 95 Tex. 51, 65 S. W. 27 20
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Catch the Fire Ministries Inc v Islamic Council of Victoria (2006) VS CA 284 03, 20
Colonial Trust Co v Montello Brick Works (1909) 172 Fed. 310 20
Davis v Ichord (1970) 442 F 2d 1207 27
Ebbew value Urban Area Distt. Council v South Wales Traffic Area Licensing Authority (1951)
2 KB 19
EDIAS Software Intern v BASIS Intern. Ltd. 947 F. Supp. 413 (1996) 21
Goodyear Dunlop Tires Operations SA v Brown, 131 S. Ct. 2846 20
Google Spain SI, Google Inc. v Agencia Española de
Protección de Datos (AEPD) 2014 12
Hunter v Southern Inc (1984) 2 SCR 145 159-60 Case C-131/12 12
Johnson v Stuart 702 F 2d 193 (9th Cir 1983) 26
J. McIntyre Machinery, Ltd. v Nicastro (2011) 131 S. Ct.2780 23
L’Oréal SA and Others v eBay C-324/09, 12 July 2011 25
Lindon Otchakovsky-Laurens and July v France App
no 21279/02 &36448/02 (2007) 07, 15, 28
Minnesota v Granite Gate Resorts 567 N.W.2d 715 (1997) 21
Quokka Sports Inc. v Cup Int’l Ltd. 99 F. Supp. 2d 1105 (N.D. Cal. 1999) 22
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R. H. Herron Co. v West Side Elec. Co (1912) 18 Cal App 778, 124 20
R v Oakes (1986) 1 SCR 103 09
Starmedia Network Inc. v Star Media Inc. WL 417118 (S.D.N.Y. 2001) 21
State of Oregon v Earl A. Henry 732 P. 2d 9 (1987) 23
VIA Corp. v McCormick Int’l, No. A05-1567 (2006) 21
Zippo Manufacturing Company v Zippo Dot
Com, Inc., 952 F. Supp. 1119 (W.D. Pa.1997) 20, 21
CONSTITUTIONS
Constitution of India, 1950 27
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Thomas Hobbs, Leviathan, 9-10(Richard Tuck ed. Cambridge University Press 1991) (1651)
Jean Bodin, Six Books of the Commonwealth, 7-8 (M.J. Tooley trans, 1955) (1576)
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Sarah Joseph and others, ‘The International Covenant on Civil and Political Rights: Cases,
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INTERNET ARTICLES:
Shilpa Samaratunge and Sanjana Hattotuwa, ‘Liking Violence: A Study of Hate Speech on
Facebook in Sri Lanka’ (2014) <http://www.cpalanka.org/liking-violence-a-study-of-hate-
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European Union Regulatory Framework for Commerce, (WTO, 18 June 2013), available at
<http://www.wto.org/english/tratop_e/serv_e/wkshop_june13_e/sparas_e.pdf> accessed 15
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(WTO, 18 June 2013), available at
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Christian Ahlert, Chris Marsden and Chester Yung, ‘How ‘Liberty’ Disappeared from
Cyberspace: The Mystery Shopper Tests Internet Content Self-Regulation’, p 7
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2016
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speech-on-facebook-in-sri-lanka/> accessed 17 October 2016.
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HRC, ‘General Comment 34’ (12 September 2011) UN Doc CCPR/C/GC/34
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High Commissioner for Human Rights’ (30 June 2014) UN Doc A/HRC/27/37 (‘UNHRC June
2014 Report’)
xxiii | P a g e
UNHRC, ‘Report of the Special Rapporteur on the Protection of the Right to Freedom of
Opinion and Expression’ (7 September 2012) UN Doc A/67/357 (‘UNHRC September 2012
Report’)
UNHRC, ‘Report of the Special Rapporteur on the Promotion and Protection of the Right to
Freedom of Opinion and Expression’ (16 May 2011) UN Doc A/HRC/17/27 (‘UNHRC May
2011 Report’)
UNHRC, ‘Report of the Special Rapporteur on Minority Issues’ (5 January 2015) UN Doc
A/HRC/28/64 (‘UNHRC January 2015 Report’)
Opinion and Expression’ (7 September 2012) UN Doc A/67/357 (‘UNHRC September 2012
Report’)
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Freedom of Opinion and Expression’ (17 April 2013) UN Doc A/HRC/23/40 (‘UNHRC April
2013 Report’)
UNHRC, ‘Report of the Independent Expert on the Situation of Human Rights in Mali (9
January, 2015) A/HRC/28/83, (28th Edition)
Opinion and Expression’ (7 September 2012) UN Doc A/67/357 (UNHRC September 2012
Report’)
xxiv | P a g e
UN Economic and Social Council, Un Sub-Commission on Prevention of Discrimination and
Protection of Minorities, ‘Siracusa Principles on the Limitation and Derogation of provision in
the ICCPR’ (1984) Annex, UN Doc E/CN 4/1984/4 principle 1.
ICCPR, ‘Concluding Observations on the Fourth Periodic Report of the United States of
America’ (23 April 2014) CCPR/C/USA/CO/4
IACHR, ‘Report of the Special Rapporteur for Freedom of Expression’ (2009) OEA/SER L/V//II
Doc IACHR 2013 A/HRC/23/40 (‘UNHRC April 2013 Report’)
MISCELLANEOUS:
UNHRC, ‘Rabat Plan of Action of the Euro African Ministerial Conference on Migration and
Development (11 July, 2006) <www.refworld.org/docid/4694a2482.html> accessed 19 October,
2016
Manila Principle on intermediary liability <https://www.eff.org/files/2015/10/31/manila
principles 1.0.pdf> accessed 17 October, 2016
UNESCO, Countering Online Hate Speech (Published in 2015)
<http://unesdoc.unesco.org/images/0023/002332/233231e.pdf> accessed 10 October, 2016
ACommHPR, ‘Resolution on the Adoption of the Declaration of Principles of Freedom of
Expression in Africa’ (2002) ACHPR/Res 62(XXXII) 02 Principle II
Opinion of the AG in joined cases C-236/08 to C-238/08 of 22 September 2009
Declaration on freedom of communication on the internet (adopted by the committee of
Ministers on 28 May, 2003)
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STATEMENT OF RELEVANT FACTS
Amostra
1. A small country consisting of two religious groups namely Yona (30%) and Zasa (70%).
Amostra has an unstable political history and in the past five years Amostra has been
facing frequent non-violent protests and occasional skirmishes between the Yona
protesters and Zasa-counter protestors. Yona people blame the Zasa-led for systematic
discriminations but no specific allegation can be brought.
Stability and Integrity Act 2014
2. Stability and Integrity Act of 2014 (hereinafter referred as SIA) is a legislation that came
into being when a number of miscreants significantly destructed government property
and in 2014 also made a series of threats against lives of the Prime Minister and leading
officials. This law strictly prohibits extremist or anti-patriotic statements.
Election Safety Act 2016
3. Election Safety Act of 2016 (hereinafter referred as ESA) is an election-centric
legislation which was enacted to prevent public disorder. ESA criminalizes inciting
political demonstrations within 30 days of general election where participants in such a
demonstration spread an extremist or seditious message, or seek or to incite hatred,
violence, or disrupt the democratic process.
SeeSey
4. SeeSey is a social media platform which allows its users to post content and also share or
comment on posts they see. SeeSey shows content to users based upon two factors; (1)
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the user’s self-selected “Home Location” (the most recent and the most popular post
receive the most visibility, and (2) contents from accounts that the user has added to users
“SeeMore” list. The government does not have the technical ability to block specific
posts from a social media service; if they block, they must block the entire service.
SeeSey has the technical ability to block individual posts in individual countries and also
has the ability to block the “SeeMore” options. SeeSey’s site lists its publicly available
Operating Policies, which explain that it may remove posts from its service ‘where
required by law or necessary for public safety.’
SeeSALES
5. A subsidiary company of SeeSey having its headquarter and sole office in Amostra.
SeeSALES is independently operated in Amostra to promote the use of SeeSey by
Amostra businesses, including the purchase of paid ads on SeeSey.
Sarranto
6. Sarranto is a large, affluent, politically stable country with significant influence in
international affairs and global markets, and where SeeSey has its headquarters. It has a
large number of immigrant populations from a number of countries, including Amostra.
Blenna Ballaya
7. Blenna Ballaya is a citizen of Amostra who lives in Sarranto. She is a famous blogger
who regularly writes about political matters but she is particularly known for being the
first to post the latest political rumours and caricatures. Her writings and caricatures are
specifically sympathetic toward the Yona Sect.
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The Ex-Amostra Times (‘The Times’)
8. The Ex-Amostran Times (‘The Times’) is a Sarranto-based domestic newspaper popular
with Amostran immigrants. It has a website which is visible to users wherever they are
located and also has an account on SeeSey where it posts selected articles from its
website content.
Government’s Effort to Prevent Public Disorder
9. On June 6, 2016, the Prime Minister of Amostra announced that general elections would
be held in 60 days, on August 5. This announcement received positive reaction and was
followed by relative calm in Amostra.
Blenna Ballaya’s Column
10. Ballaya’s column ‘An Open Letter to the Oppressors’ was published on July 7, 2016. In
her column, she accused the Prime Minister and others members of the Zasa sect of
corruption and human rights violation against Yona people. She also called the August
election a sham for Zasa political gain. She concluded the column by calling an active
and peaceful Day of Resistance on August 1.
Reaction to Ballaya’s Column
11. A large number of Yona sect read the column on SeeSey and some of them posted
comments that they would carry knives and other available weapon in case of persecution
by the law enforcement or the government on the Day of Resistance.
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Day of Resistance
12. On the called-for Day of Resistance, Ballaya travelled to Amostra to attend the protest.
Though it was supposed to be a peaceful protest, a portion of the Yona sect chanted
political hard-lines and set fire to a Zasa religious building frequented by leading
government officials, and attacked law enforcement which tried to prevent the arson
attack. The attackers were chanting a famous Yona unity song which Ballaya had used in
her column.
Amostra’s Prosecution of Ballaya and Civil Order against SeeSey
13. Amostra prosecuted Ballaya under Section A and B of the SIA and Section 3 of the ESA
as an organizer of the protest in connection with her column; she was sentenced to three
years’ imprisonment under SIA and was fined $300,000 under ESA. An order against
SeeSey was issued by an Amostran Court requiring it to remove all offensive contents
relating to Ballaya’s column and also post an apology to calm tensions. Both Ballaya’s
conviction and the order against SeeSey were upheld in Amostra’s Supreme Court,
exhausting their domestic appeals.
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STATEMENT OF JURISDICTION
Ballaya and SeeSey (hereinafter “Applicants”) and State of Amostra (hereinafter “Respondent”)
have approached the Universal Court of Free Expression, the special chamber of the Universal
Court of Human Rights hearing issues relating to provisions of the Universal Declaration of
Human Rights (hereinafter “UDHR”)1 under the enabling Preamble of the UN Charter.2 No law,
domestic or international, restricts Applicants’ standing to bring these challenges.3 The
applicants have exhausted all local remedies.4 This Court has jurisdiction over Ballaya and
SeeSey, as Applicants, and the State of Amostra, as Respondent.5
On the basis of the foregoing, the court is hereby requested to hereby adjudge the dispute in
accordance with the rules and principles of international law, including any applicable
declarations and treaties.
1
Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III)
2
United Nations Charter (signed on 26 June 1945, in San Francisco, at the conclusion of the United Nations
Conference on International Organization, and came into force on 24 October, 1945)
3
Price Media Law Moot Court Competition Rules, 2014-2015, §5.4
4
Moot proposition, para 21
5
Price Media Law Moot Court Competition Rules, 2014-2015, §5.4
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QUESTIONS PRESENTED
ISSUE A: Whether Amostra’s prosecution of Ballaya under the SIA violates international
principles, including Article 19 of the Universal Declaration of Human Rights (“UDHR”) and
Article 19 of the International Covenant on Civil and Political Rights (“ICCPR”).
ISSUE B: Whether Amostra’s prosecution of Ballaya under the ESA violates international
principles, including Article 19 of the UDHR and Article 19 of the ICCPR.
ISSUE C: Whether Amostra has jurisdiction to obtain and enforce the civil order against SeeSey
in Amostra and Sarranto.
ISSUE D: Whether Amostra’s civil order against SeeSey violates international principles,
including Article 19 of the UDHR and Article 19 of the ICCPR.
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SUMMARY OF ARGUMENTS
ISSUE A
Right to Freedom of expression is not absolute and can be restricted on certain circumstances.
State can restrict speech that advocates religious hatred which is imminent and likely to cause
lawless action and violence. Ballaya intentionally accused the Zasa religious sect of human rights
violation and instigated them to disrupt the democratic system in a relatively calm circumstance
in Amostra while there was already political disturbance and violence between Zasa and Yona
religious sect. The Act is prescribed by law as the terms conform to other legislation enacted
throughout the world. The statutes need not be absolutely precise as laws must be broad enough
to keep pace with new online challenges for its over and easy accessibility.
The SIA has adequate safeguards as it indicates the extent of its discretion and Ballaya appealed
to the Supreme Court of Amostra. The restriction serves legitimate aim for protecting violence
and preserving public order as Ballaya’s statement provoke hatred and led to violence against
Zasa religious sect. The restrictions have pressing social need as extensive coverage of Ballaya’s
statement on social media in existing political disturbance spread more hatred toward Zasa
religious sect. Considering the nature and severity of the statement, three years jail imprisonment
was proportionate.
ISSUE B
Ballaya was prosecuted under section 3 of the Election Safety Act of 2016. Freedom of
Expression is not an absolute right. Various international principles including ICCPR suggest
that freedom of expression is subject to certain restrictions. Her column was a threat to others’
reputation and it incited such a public demonstration which was barred by law. The action of the
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government cannot be called arbitrary because it was the necessity which was justifiable in the
factual circumstances. Ballaya’s prosecution did not violate any international principle, including
Article 19 UDHR and Article 19 of the ICCPR. Also, the action of the government was in
consonance with the requirements of the three-part test, i.e., ‘prescribed by law’, ‘pursued with
legitimate aim’, and ‘necessary in a democratic society’.
ISSUE C
The rule of sovereign territorial jurisdiction is not absolute, exercising jurisdiction over
extraterritorial conduct or foreign entity is permissible in certain circumstances. ‘SeeSey’
website contains some features of interactive nature which constitute minimum contact with the
forum state which is required for personal jurisdiction. It is inferred from circumstances that
‘SeeSey’ also had targeted the forum state by making its website accessible there; besides,
‘SeeSey’ owned a subsidiary, named SeeSALES’, which mostly worked for promoting use of
‘SeeSey’ in Amostra. Thereby ‘SeeSey’ availed itself of privileges of doing business in Amostra.
Therefore, Amostra has the rightful authority to exercise jurisdiction over ‘SeeSey’.
ISSUE D
Civil order does not violate any international principle including article 19 of the UDHR and the
ICCPR. According to E-Directives and judicial practice of different countries, takedown order
can be imposed upon the intermediary for removing illegal contents. The post of Ballaya and
subsequent comments of SeeSey users were illegal for violating the provisions of the SIA.
Freedom of expression can be curtailed if it conflicts with the interest of the state without
causing any chilling effect.
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Moreover, the restriction under the SIA will be deemed valid given that it has met all the criteria
of three part tests of article 29(2) of the UDHR. The takedown order of the court was clearly
prescribed by the SIA and provisions of that Act were also made sufficiently precise and
foreseeable. Additionally, the law was promulgated in pursuance of the legitimate aim that is to
maintain public order and political stability of Amostra and it was necessary in Amostra to
prevent imminent lawless action and public disorder. The restriction was proportionate to the
legitimate aim as it imposed least onerous restriction upon the intermediary ‘SeeSey’.
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ARGUMENTS
ISSUE-A: AMOSTRA’S PROSECUTION OF BALLAYA UNDER THE SIA DID NOT
VIOLATE INTERNATIONAL PRINCIPLES, INCLUDING ARTICLE 19 OF THE
UDHR AND ARTICLE 19 OF THE ICCPR
The right to freedom of expression6 is protected under international law,7 but this is not an
absolute right.8 The rights can be restricted for a specific purpose9 to promote a legitimate
government interest.10 Charges were brought against Ballaya for her column under the Stability
and Integrity Act (SIA) of 2014. The respondent submits that the prosecution of Ballaya is
consistent with Article 19 as Ballaya has committed hate speech [I] and the restriction imposed
by prosecution is permissible under Article 29(2) of the UDHR and Article 19(3) of the ICCPR
[II].
6
Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217A (III) art 19; European
Convention on Human Rights (adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 1932 art
10; International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March
1976) 999 UNTS 171 art 19(2); American Convention on Human Rights (adopted 22 November 1969, entered into
force 18 July 1978) art 13; African Commission on Humans and People’s Rights (adopted 27 June 1981, entered
into force 21 October 1986) (1982) 21 ILM 58 art 9.
7
UNHRC ‘General Comment 34’ in ‘Article 19: Freedoms of Opinion and Expression’ (2011) UN Doc
CCPR/C/GC/34.
8
UDHR art 29(2); ECHR (adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 1932 arts
8(2) and 10(2); ICCPR arts 17(1) and 19(3); ACHR (adopted 22 November 1969, entered into force 18 July 1978)
arts 11(2) and 13(2); ACHPR (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58 art
9(2); HRC, ‘General Comment 34’ (12 September 2011) UN Doc CCPR/C/GC/34 (‘General Comment 34’) para 21;
Zegveld v Eritrea (2003) AHRLR 84 (ACHPR 2003) para 59; Tristán Donoso v Panamá IACtHR (2009) Series C
193, para 110.
9
Ginsberg v New York 390 US 629 (1968); Ward v Rock against Racism 491 US 781 (1989).
10
Refah Partisi v Turkey (2003) 37 EHRR 1, para 67; Ricardo Canese v Paraguay IACtHR (2004) Series C No 111,
para 96.
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I. Prosecution of Ballaya under the ESA is consistent with Article 19 of the UDHR and the
ICCPR respectively
Freedom of expression carries with it some special duties and responsibilities and it can be
derogated11 for the purpose of morality, public order and general welfare in a democratic
society.12 Speech that collides with the rights of others or calls for hatred against a particular
group does not invoke a protection.13 The respondent submits that Ballaya’s freedom of speech
was duly restricted as her column incited hatred and violence against Zasa religious sect.14
(a) Ballaya’s column, ‘An Open Letter to the Oppressors’ constitutes Hate Speech
States are under the obligation to prohibit manifestation of religious beliefs that may amount to
advocacy of religious hatred causing incitement leading to discrimination and violence.15
‘Hatred’ refers to intense and irrational emotion of opprobrium and enmity towards the target
11
ICCPR (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 art 19(3); HRC, ‘General
Comment 34’ (12 September 2011) UN Doc CCPR/C/GC/34 (‘General Comment 34’) para 21; Recommendation
CM/Rec (2014)6 of the Committee of Ministers to Member States on a Guide to Human Rights for Internet Users
(adopted 16 April 2014) para 2.
12
UDHR (adopted 10 December 1948) UNGA Res 217A (III) art 29(2).
13
Toby Mendel, ‘Hate Speech Rules under International Law’, Centre for Law and Democracy Publication (2010)
available at <http://law-democracy.org/wp-content/uploads/2010/07/10.02.hate-speech.Macedonia-book.pdf>
accessed on 9 October 2016.
14
Moot proposition, para 18.
ICCPR (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171) art 20; UNHRC, ‘General
15
Comment 22’ on ‘Freedom of Expression’ (1993) UN Doc HR 1/GEN/1/Rev.1, para 7.
2|Page
group.16 A state may interfere with an individual’s right to freedom of expression if he engages
in hate speech.17 National18 and regional laws19 also prohibit incitement to religious hatred.
Hate speech requires (i) intent, (ii) imminence and (iii) likelihood of creating lawlessness and
violence.20 Everyone who makes statements to willfully promote hatred against any identifiable
group is guilty of an indictable offence.21
Being driven by her engraved religious hatred towards Zasa religious sect, Ballaya intentionally
accused Zasa religious sect of corruption and human rights violation against Yona people.22
Moreover, to instigate Yona people to engage in violence on the resistance day, she called the
election ‘a sham for Zasa political gain’.23
Cultural paradigms must be taken into account while considering what constitutes hate speech.24
Additionally, existing social and religious tensions are also considered to decide whether a
16
Article 19, ‘Camden Principles on Freedom of Expression and Equality’ (April, 2009) Principle 12.1
<https://www.article19.org/data/files/pdfs/standards/the-camden-principles-on-freedom-of-expression-and-
equality.pdf> accessed on 10 October 2016; R v Keegstra [1990] 3 SCR 697 (Canada) para 1.
17
Ross v Canada Communication No 736/1997 UN Doc CCPR/C/70/D/736/1997 (2000) para 11,5;
18
The Public Order Act 1998 (UK) ss 17,18.
19
International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 December, 1965
and entered into force 4 January 1969) (ICERD) art 4; International Covenant on Civil and Political Rights (adopted
16 December 1966, entered into force 23 March 1976) art 20.
20
Brandenburg v Ohio [1969] 395 US [444], [447]; See also Erbakan v Turkey [2006] App no 59405/00 (ECtHR, 6
July, 2006) [68]; Schenk v United States [1919] 249 US 47; Wahitney v California [1927] 274 US [357], [377].
21
Criminal Code 2016 (Canada) s 319 (2) (b).
22
23
24
UNHRC January 2015 Report para 52; Sürek v Turkey App no 23927/94 (ECtHR, 8 July 1999) para 62; Karatas v
Turkey App no 23168/94 (ECtHR, 8 July 1999) para 48; Catch the Fire Ministries Inc v Islamic Council of Victoria
[2006] VSCA 284 para 159; UNHRC, ‘Report of the Special Rapporteur on Minority Issues’ (5 January 2015) UN
3|Page
speech has become a hate speech.25 The message of the published article was very clear that she
wanted to disrupt the social harmony and cause mistrust between Zasa and Yona religious sects.
When hostility and occasional skirmishes26 between the two groups were acute than everbefore
such of her provoking article set the groups further apart and disrupt the Amostra’s democratic
system. Ballaya gave incitement to a public demonstration where Zasa religious buildings were
set to fire and law enforcement who tried to prevent the arson attack were attacked. 27
A person would enjoy the constitutional guarantee of free speech until that person is inciting or
producing imminent lawless action and is likely to incite or produce such action.28Amostra had
been facing occasional political disturbances and violence between Zasa and Yona religious sect
amidst its social and political instability; so it was potentially dangerous for Ballaya to instigate
demonstration that might lead to violence during the crucial time of political upheaval. 29
Ballaya’s statement led to breach of peace as it created potential for a disturbance.
Doc A/HRC/28/64 (‘UNHRC January 2015 Report’) para 52; UNHRC, ‘Rabat Plan of Action on the Prohibition of
Advocacy of National, Racial or Religious Hatred that Constitutes Incitement to Discrimination, Hostility or
Violence’(2012) <http://www.ohchr.org/Documents/Issues/Opinion/SeminarRabat/Rabat_draft_outcome.pdf>
accessed 19 October 2016 (‘UNHRC Rabat Plan’) para 22; Article 19, ‘Prohibiting Incitement to Discrimination,
Hostility or Violences’ (21 December 2012)
<https://www.article19.org/resources.php/resource/3572/en/prohibiting-incitement-to-discrimination,-hostility-or-
violence> accessed 19 October 2016.
25
Leory v France App no 36109/03 (ECtHR, 2 October 2008) para 45. See also Soulas v France App no 15948/03
(ECtHR, 10 July 2009) paras 37-39; Perincek v Switzerland App no 27510/08 (ECtHR, 15October 2015)
(‘Perincek’) para 205.
26
Moot Proposition, para 01.
27
28
Brandenburg v Ohio [1969] 395 US 444.
29
Cf. Miller v. State of Delaware 374 A 2d 271 (12 April 1977).
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II. The restriction is permissible under article 29 of the UDHR and article 19 of the ICCPR
Limitation clauses under different International Human Rights instruments set forth a three-part
test in support of the restriction; the limitations must be (a) prescribed by law, (b) in pursuit of a
legitimate aim and (c) necessary in a democratic society.30
a. The restriction must be provided by law
An Act is prescribed by law if it is accessible and its consequence should be foreseeable. 31 It is
accessible if it is explicit clear and precise32 and not circled with vagueness and over-breadth.33
A law is foreseeable if it is prescribed with sufficient precision to enable citizen to regulate their
30
Womah Mukong v Cameroon UN Doc CCPR/C/51/D/458/1991 (HRC, 10 August 1994) para 9,7; Sohn v Republic
of Korea UN Doc CCPR/C/54/D/518/1992 (HRC, 19 July 1995) para 10.4; Malcolm Ross v Canada UN Doc
CCPR/C/70/D/736/1997 (HRC, 18 October 2000) para 11.2; Velichikn v Belarus UN Doc CCPR/C/85/D/1022/2001
(HRC, 20 October 2005) para 7.3; UNHRC ‘General Comment 34’ in ‘Article 19: Freedoms of Opinion and
Expression’ (2011) UN Doc CCPR/C/GC/34 para 35; UNHRC, ‘Report of the Special Rapporteur on the Promotion
and Protection of the Right to Freedom of Opinion and Expression’ (17 April 2013) UN Doc A/HRC/23/40
(‘UNHRC April 2013 Report’) para 29; ACommHPR, ‘Resolution on the Adoption of the Declaration of Principles
of Freedom of Expression in Africa’ (2002) ACHPR/Res 62(XXXII)02 Principle II, Interights v Mauritania
AHRLR 87 Comm no 242/2001 (ACommHPR,2004) paras 78-79; Zimbabwe Lawyers for Human Rights & Institute
for Human Rights and Development in Africa v Zimbabwe AHRLR 268 Comm no 294/04 (ACommHPR, 2009) para
80.
31
The Sunday Times v United Kingdom (1979-80) 2 EHRR 245; Silver and Others v United Kingdom (1983) 5
EHRR 347; Malone v United Kingdom (1984) 7 EHRR 14; Olsson v Sweden (1988) 11 EHRR 259; Rekvényi v
Hungary App no 25390/94 (ECtHR, 20 May 1999); Ekin v France (2001) ECHR 473; 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).
32
Herrera-Ulloa v Costa Rica, Preliminary Objections, cited in I/A Court H.R., Merits, Reparations and Costs.
Judgment of July 2, 2004 Series C No 107 para 120; Ricardo Canese v Paraguay, cited in I/A Court H.R. Merits,
Reparations and Costs. Judgment of August 31, 2004 Series C No 111 Para 72(a).
33
UNCHR ‘General Comment 3’ in ‘Article 19 (Freedom of Opinion and Expression)’ (2011) UN Doc
CCPR/C/GC/34.
5|Page
conduct.34 A statute is prescribed by law if: (1) it is sufficiently precise; (2) it contains adequate
safeguard.35
(i) The SIA is sufficiently precise
An Act is ‘prescribed by law’ if it is sufficiently precise so as to enable individuals to reasonably
foresee the consequences which a given action may entail. 36As the consequences may bring
37
excessive rigidity in the law, it needs not to be foreseeable with absolute certainty and states
do not demand ‘mathematical certainty’ from a statute.38 The definitions of ‘extremist’ and ‘anti-
patriotic’ are precise enough since the terms ‘undermining authority’39, ‘speech insulting
government authority’40, ‘inciting hatred against religious groups’41, ‘conduct or speech inciting
people rebel against the government authority’42are adopted in various legislation throughout the
34
The Sunday Times v United Kingdom App no 13166/87 (ECtHR, 26 November 1991); See also Malone v United
Kingdom (1984) 7 EHRR 14; Markt intern Verlag GmbH and Klaus Beermann v Germany A 164 (1989) 12 EHRR
161; Muller v Switzerland (1991) 13 EHRR 212.
35
Silver v UK App nos 5947/72, 6205/73, 7052/75, 7061/75, 7107/75, 7113/75, 7136/75 (ECtHR, 25 March 1983)
(‘Silver’) paras 85–90; Malone v UK App no 8691/79 (ECtHR, 2 August 1984) (‘Malone’) paras 67–68; Weber and
Saravia v Germany App no 54934/00 (ECtHR, 29 June 2006) (‘Weber’) para 23; Editorial Board of PravoyeDelo
and Shtekel v Ukraine App no 33014/05 (ECtHR, 5 August 2011) (‘Editorial Board’) para 51; Ahmet Yıldırım v
Turkey App no 3111/10 (ECtHR, 18 December 2012) (‘Ahmet’) paras 57–59; ICCPR, ‘Concluding Observations on
the Fourth Periodic Report of the United States of America’ (23 April 2014) CCPR/C/USA/CO/4 para 22; UNHRC,
‘The Right to Privacy in the Digital Age, Report of the Office of the United Nations High Commissioner for Human
Rights’ (30 June 2014) UN Doc A/HRC/27/37 (‘UNHRC June 2014 Report’) para 28.
36
The Sunday Times v United Kingdom (1979-80) 2 EHRR 245, para 49.
37
The Sunday Times v United Kingdom (1979-80) 2 EHRR 245, para 49.
38
Grayned v. City of Rockford 408 US 104 (1972).
39
Russian Federation Federal Law on Counteracting Extremist Activity, art 1(1).
40
The Criminal Code, art 116 (Austria); The Criminal Code, art 121 (Denmark).
41
The Racial and Religious Hatred Act, s 29B.
42
18 US Code, s 383.
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world. Moreover, the nature of offence is criminal under SIA which is precisely mentioned in the
act.43
Moreover, an act is not required to be absolutely precise in restricting widely disseminated
online communication, as laws must be broad enough to keep pace with changing societal
circumstances.44 The level of precision required depends on the circumstances, the content of the
law and field it is designed to cover.45 To regulate online speech of which is posing new
challenges for its over and easy accessibility and causing, 46 threat to social order and many
guises of hate speech,47 the SIA had to be enacted in stringent terms.48 In the prevailing social
unrest and political instability, SIA was enacted after an incidence of violent protest near the
parliament causing significant damage to government property and grave threats against the lives
of the PM and other officials.49
43
44
Müller v Switzerland App no 10737/84 (ECtHR, 24 May 1988) para 29; Kokkinakis v Greece App no 14307/88
(ECtHR, 25 May 1993) para 40; Lindon, Otchakovsky-Laurens and July v France App no 21275/02 (ECtHR, 22
October 2007) (‘Lindon’) para 41; Delfi AS v Estonia App no 64569/09 (ECtHR, 10 October 2013) (‘Delfi October
2013’) [71], [75].
45
Editorial Board of Pravoye Delo and Shtekel v Ukraine App no 33014/05 (ECtHR, 5 August 2011) (‘Editorial
Board’) para 52; Centro Europa 7 S R L and Di Stefano v Italy App no 38433 (ECtHR, 7 June 2012) (‘Centro
Europa’) para 142; Delfi AS v Estonia App no 40287/98 (ECtHR, 16 June 2015) (‘Delfi June 2015’) para 122;
Metropolitan Church of Bessarabia v Moldova (2002) 35 EHRR 306, para 109.
46
UNESCO, ‘Countering Online Hate Speech’ (UNESCO Publishing 2015) 13–15.
47
UNHRC, January 2015 Report para 52; See also UNESCO, ‘Countering Online Hate Speech’ 10.
48
49
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(ii) The SIA has adequate safeguard
The law must prescribe with sufficient precision the scope of any discretion and the manner of its
exercise50 as the delineation of discretion is considered as safeguard.51 The SIA has adequate
safeguards against unfettered discretion as it precisely indicates the extent of its discretion. 52 As
the judiciary is an appropriate check against the executive53, the right to an appeal is an adequate
safeguard.54 Ballaya’s appeal to the Supreme Court of Amostra55 demonstrates that the SIA has
adequate safeguards.
(b) The restriction has Legitimate Aim for Protecting Public Order
Any restrictions on freedom of expression must be proportionate to the legitimate aim pursued.56
Inference with free speech for preventing violence57and preserving public order58 serves a
50
Malone v UK App no 8691/79 (ECtHR, 2 August 1984) (‘Malone’) paras 67–68; Liu v Russia (no 2) App no
29157/09 (ECtHR, 26 July 2011) (‘Liu’) para 88; Silver v UK App nos 5947/72, 6205/73, 7052/75, 7061/75,
7107/75, 7113/75, 7136/75 (ECtHR, 25 March 1983) (‘Silver’) para 90; Huvig v France App no 11105/84 (ECtHR,
24 April 1990) (‘Huvig’) para 34; Kruslin v France App no 11801/85 (ECtHR, 24 April 1990) (‘Kruslin’) para 35.
51
Silver v UK App nos 5947/72, 6205/73, 7052/75, 7061/75, 7107/75, 7113/75, 7136/75 (ECtHR, 25 March 1983)
(‘Silver’) para 90; Malone v UK App no 8691/79 (ECtHR, 2 August 1984) (‘Malone’) paras 67–68; Liu v Russia (no
2) App no 29157/09 (ECtHR, 26 July 2011) (‘Liu’) para 88; Huvig v France App no 11105/84 (ECtHR, 24 April
1990) (‘Huvig’) para 34; Kruslin v France App no11801/85 (ECtHR, 24 April 1990) (‘Kruslin’) para 35.
52
Moot proposition, para 10 (a),(d).
53
Malcolm Ross v Canada UN DocCCPR/C/70/D/736/1997 (HRC, 18 October 2000) (‘Malcolm Ross’) para 11.5;
Klass v Germany App no 5029/71 (ECtHR, 6 September 1978) (‘Klass’) para 56.
54
Klass v Germany App no 5029/71 (ECtHR, 6 September 1978) (‘Klass’) para 56; Uzun v Germany App no
35623/05 (ECtHR, 2 September 2010) (‘Uzun’) para 72; Gurtekin v Cyprus App nos 60441/13, 68206/13, 68667/13
(ECtHR, 11 March 2014) (‘Gurtekin’) para 28.
55
Moot Proposition, Para 25.
56
Doğan v Turkey App no 50693/99 (ECHR, 10 January 2006), paras 150, 152.
57
Beauharnais v Illinois 343 US 250, 342–43 (1952).
58
Refah Partisi v Turkey (2003) 37 EHRR 1, paras 51, 67; Association Ekin v France (2002) 35 EHRR 35, paras 3,
48; Ceylan v Turkey (2000) 30 EHHR 73, paras 24, 26–28.
8|Page
legitimate aim when threats to internal order are ‘pressing and substantial’.59A restriction
discouraging further debate can be justified in order to protect the rights of others.60
Speech that may incite violence can be restricted aiming at protecting public order. 61 Prosecuting
hate speech pursues the legitimate aims of protecting public order.62 The increasing social unrest
and religious conflict has already caused significant damages to property and life.63 In that
context Ballaya’s column have provoked hatred and led to the violent protest64 and a grave
infliction in public order. It is legitimate for the Amostran government to restrict any speech to
guard public order and secure law and order situation.
(c) The interference with free speech was necessary on a democratic society
Any interference is necessary in a democratic society if it: (1) corresponds to a pressing social
need; and (2) is proportionate to the legitimate aims pursued.65
59
R v Oaks [1986]1 SCR 103; Murphy v Ireland (2004) 38 EHRR 212, paras 15, 48, 54, 59.
60
Regis Bismuth, ‘Standards of Conduct for Journalists under Europe’s First Amendment’ (June, 11 2010) 8(2) First
Amendment Law Review 283 < http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1623717> accessed 19 October
2016.
61
Gunduz v Turkey App no 3571/97 (ECtHR, 4 September 2003) (‘Gunduz’) para 28; Alinak v Turkey App no
40287/98 (ECtHR, 29 March 2005) paras 27–28; General Comment 34 paras 22, 33–34; UNHRC April 2013 Report
para 29.
62
UNHRC, ‘Report of the Special Rapporteur on the Protection of the Right to Freedom of Opinion and Expression’
(7 September 2012) UN Doc A/67/357 (‘UNHRC September 2012 Report’) paras 36–40; UNHRC April 2013
Report (n 10) para 28. See also Ross v Canada Communication No 736/1997 UN Doc CCPR/C/70/D/736/1997
(2000), para 11.5.
63
Moot proposition, para 1, para 10.
64
65
Cumpănă and Mazăre v Romania App no 33348/96 (ECtHR, 17 December 2004); R v Oakes [1986] 1 SCR 103;
Chauvy and others v France App no 64915/01 (ECtHR, 29.September 2004); General Comment 34 paras 22, 33–34;
UNHRC April 2013 Report para 29; Delfi June 2015 para 131; Perincek v Switzerland App no 27510/08 (ECtHR,
15October 2015) (‘Perincek’) paras 196, 228.
9|Page
(i) The limitations serve a pressing social need
Necessity implies the existence of a “pressing social need”.66 The pressing social need has to be
determined with consideration of the general context.67A state may interfere with a citizen’s
rights to free speech if he engages in extremist68and hate speech.69 Public interest must be taking
into account to determine the pressing social need to interfere with free speech. 70 The state
enjoys a wide margin of appreciation as they can better evaluate the necessity and reasonableness
of a restriction of freedom of speech.71
Existing tensions72 between two religious sects and Ballaya’s influential standing over Yona sect
are relevant in determining the severity of speech.73 Moreover, extensive coverage of social
66
Sürek v Turkey ECHR 1999-IV 353 para 33.
67
News Verlags GmbH & Co KG v Austria App no 31457/96 (ECtHR, 11 April 2000).
68
Malcolm Ross v Canada UN DocCCPR/C/70/D/736/1997 (HRC, 18 October 2000) (‘Malcolm Ross’) para 11.5;
Delfi AS v Estonia App no 64569/09 (ECtHR, 10 October 2013) (‘Delfi October 2013’) paras 48, 131; Perincek v
Switzerland App no 27510/08 (ECtHR, 15October 2015) (‘Perincek’) para 196, 204.
69
Malcolm Ross v Canada UN Doc CCPR/C/70/D/736/1997 (HRC, 18 October 2000) (‘Malcolm Ross’) para 11.5;
UNHRC, ‘Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion
and Expression’ (16 May 2011) UN Doc A/HRC/17/27 (‘UNHRC May 2011 Report’) para 25; UNHRC, ‘Report of
the Special Rapporteur on Minority Issues’ (5 January 2015) UN Doc A/HRC/28/64 (‘UNHRC January 2015
Report’) paras 52–54; Delfi AS v Estonia App no 64569/09 (ECtHR, 10 October 2013) (‘Delfi October 2013’) paras
48, 131; Perincek v Switzerland App no 27510/08 (ECtHR, 15October 2015) (‘Perincek’) para 196, 204.
70
The Sunday Times v United Kingdom (1979-80) 2 EHRR 245 para 67.
71
S and Marper v UK App nos 30562/04 and 30566/04 (ECtHR, 4 December 2008); Z v Finland App no 22009/93
(ECtHR, 25 February 1997); Chassagnou and others v France App nos 25088/94, 28331/95 and 28443/95 (ECtHR,
29 April 1999).
72
Leroy v France App no 36109/03 (ECtHR, 2 October 2008) para 45. See also Balsyte-Lideikiene v Lithuania App
no 72596/01 (ECtHR, 4 December 2008) (‘Balsyte-Lideikiene’) para 78; Soulas v France App no 15948/03 (ECtHR,
10 July 2009) paras 37–39; Perincek v Switzerland App no 27510/08 (ECtHR, 15October 2015) (‘Perincek’) para
205.
73
Malcolm Ross v Canada UN Doc CCPR/C/70/D/736/1997 (HRC, 18 October 2000) (‘Malcolm Ross’) para 11.6;
African Institute for Human Rights and Development v Guinea AHRLR 57 Comm no 249/2002 (ACommHPR, 7
December 2004) para 73.
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media renders it an effective expeditious means of spreading hatred towards others. 74 As too
many people use SeeSey within and beyond Amostra, her inciting and hateful speech had led to a
disastrous consequence. Thus the restriction upon Ballaya’s column is necessary.
(ii) The restrictions is proportionate to the legitimate aim pursued
States enjoy a wider margin of appreciation in restricting statements that incite violence against a
particular sector of the population.75 The nature and severity of the punishment imposed are
relevant in determining proportionality of the limitation of fundamental rights.76 Spreading
religious hatred is an offence subject to criminal punishment.77 The socio political context of
Amostra and the hate content of the post pose a grave danger in public order situation of
Amostra. Thus the punishment of imprisonment imposed upon Ballaya is proportionate to the
legitimate aim. The three-year jail term was proportionate.78 Jail sentences of 1–7 years have
been imposed for hate speech even in stable democracies such as Brazil79 and the UK80.
74
Reuters, ‘Social Networks are New Sites for Hate Speech’ (13 May 2009)
<http://www.pcmag.com/article2/0,2817,2347004,00.asp> accessed 17 October 2016; Curtis Houghland, ‘Things
Fall Apart: How Social Media Leads to a Less Stable World’ (2014)
<http://knowledge.wharton.upenn.edu/article/how-social-media-leads-to-a-less-stable-world> accessed 17
October2016;
75
Ceylan v Turkey App no 23556/94 (ECtHR 8 July 1999) (‘Ceylan’) para 34; Sürek (No 1) para 61; Sürek (No 3) v
Turkey App no 24735/94 (ECtHR, 8 July 1999) para 37; Şener v Turkey App no 26680/95 (ECtHR, 18 July 2000)
para 40. See also Klass v Germany App no 5029/71 (ECtHR, 6 September 1978) (‘Klass’) para 59; Hatton v UK
App no 36022/97 (ECtHR, 8 July 2003) (‘Hatton’) para 122; Ždanoka v Latvia App no 58278/00 (ECtHR, 16 March
2006) paras 106–111; Lambert v France App no 46043/14 (ECtHR, 5 June 2013) paras 31–41.
76
Ceylan v Turkey App no 23556/94 (ECtHR 8 July 1999) (‘Ceylan’) para 37; Gündüz v Turkey App no 3571/97
(ECtHR, 4 September 2003) (‘Gündüz’) para 42; Salov v Ukraine App no 65518/01 (ECtHR 6 September 2005)
para 115; Kwiecień v Poland App no 51744/99 (ECtHR, 9 January 2007) para 56; Murat Vural v Turkey App no
9540/07 (ECtHR, 21 January 2015) (‘Murat Vural’) para 64.
77
The Racial and Religious Hatred Act (UK) s 29(B).
78
The Racial and Religious Hatred Act (UK) s 29(L).
79
Daniel Silva, Circulation of Violation in Discourse <https://www.tilburguniversity.edu/upload/80cfac9c-312c-
4511-8d8d-9b1e87f35957_TPCS_109_Silva.pdf> accessed 20 October 2016.
11 | P a g e
ISSUE- B: AMOSTRA’S PROSECUTION OF BALLAYA UNDER THE ESA DOES NOT
VIOLATE INTERNATIONAL PRINCIPLES INCLUDING ARTICLE 19 OF THE
UDHR AND ARTICLE 19 OF THE ICCPR
The basic duty of the state is to protect the citizens from injury and violence 81 so that the rights
and freedoms set forth in a democratic society can be fully realized.82 The right to freedom of
expression83 is not an absolute right84. ICCPR85 prescribes that this right may be subject to some
certain restrictions to protect public order.86 Balancing of individual interest with that of the state
is the prerequisite for its validity.87 Respondent submits that Amostra can exercise wide margin
of appreciation regarding Ballaya’s speech [I] and Prosecution of Ballaya is justified and
permissible under article 29(2) of UDHR [II].
80
The Racial and Religious Hatred Act (UK) s 29(L).
81
John Locke, ‘Third Letter on Tolerance’ in Peter Laslett (ed) Two Treaties of Government (CUP 1988); Steven J.
Heyman, ‘the First Duty of Government: Protection, Liberty and the Fourth Amendment’ (1991) 41 Duke L J 507,
515.
82
UDHR (adopted 10 December 1948) UNGA Res 217A (III) art 28.
83
UDHR (adopted 10 December 1948) UNGA Res 217A (III) art 19; ECHR (adopted 4 November 1950, entered
into force 3 September 1953) 213 UNTS 1932 art 10; ICCPR (adopted 16 December 1966, entered into force 23
March 1976) 999 UNTS 171 art 19(2); ACHR (adopted 22 November 1969, entered into force 18 July 1978) art 13;
ACHPR (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58 art 9.
84
UDHR art 29(2); ECHR (adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 1932 arts
8(2) and 10(2); ICCPR arts 17(1) and 19(3); ACHR (adopted 22 November 1969, entered into force 18 July 1978)
arts 11(2) and 13(2); ACHPR (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58 art
9(2); HRC, ‘General Comment 34’ (12 September 2011) Un Doc CCPR/C/GC/34 (‘General Comment 34’) para 21.
85
ICCPR (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS art 19(3)
86
ICCPR (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS art 19(3)
87
Hunter v Southern Inc., [1984] 2 SCR 145 159-60; Case C-131/12 Google Spain SI, Google Inc. v Agencia
Española de Protección de Datos (AEPD) [2014] Mario Costeja González.
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I. Amostra can exercise wide margin of appreciation regarding Ballaya’s speech
Incitement occurs when a speech promotes, encourages or fosters conduct that disturbs ‘public
order and tranquility’ and is ‘likely to produce violence’.88 Inciting racial, religious or national
hatred89 to cause imminent lawless action90 or incitement that is likely to threaten or incite
discrimination, hostility or violence is not protected.91 Irresponsible speech is not worthy of
protection92 and any racist speech leading to breach of peace is illegal 93 and is not treated
mercifully.94 Ballaya instigated religious hatred by fabricating fallacious allegation against Zasa
religious sect.95 She called the upcoming election a ‘sham’ and concluded the column by echoing
a call for resistance.96 In relatively calm situation it rekindled the hatred in Yona sect and led to
the violence occurred in August 1.97
88
American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978)
1144UNTS 123 (ACHR) art 13(5); Cantwell v Connecticut 310 US 296, 308 (1940); KaliCharan Sharma v King-
Emperor AIR 1927 All 654, 654.
89
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23
March1976) 999 UNTS 171 (ICCPR) art 20(2).
90
Brandenburg v Ohio 395 US 444, 447 (1969).
91
Brandenburg v. Ohio 395 US 444, 447 (1969); JRT & WG Party v Canada Communication No 104/1981 UN Doc
CCPR/C/18/D/104/1981 (1983), para 8; Leslie Kendrick, Speech , Intent and the Chilling Effect (June 2012)
<http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=3481&context=wmlr> accessed on 20 October 2016
92
Vejdeland v Sweden App no 1813/07 (ECtHR, 9 February 2012), para 55.
93
Virginia v Black 538 US 343 (2003); Ramji Lal Modi v State of Uttar Pradesh AIR 1957 SC 620 (India).
94
Rabbi Ido Alba v. State of Israel, 50(5) PD 221(1996).
95
96
97
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Lawless action occurs when there is a potential for disturbance even if that action does not
actually take place.98 Moreover, the speech does not have to propose violence; lawless action is
deemed to have occurred when such speech is likely to cause a breach of peace. 99 Ballaya’s
column clearly instigates violence though it proposes a peaceful violence.100
II. Prosecution of Ballaya is justified and permissible under article 29(2) of UDHR
Derogations from the Freedom of Expression obligation are permissible only in exceptional
situation of crisis101 or emergency conditions102 and such exigency meet the standard of the
margin of appreciation.103 The freedom of expression may be limited under specific
circumstances.104 Limitation clauses of under different International Human Rights instruments
set forth a three-tier test in support of the restriction; the limitations must be (i) prescribed by
law, (ii) in pursuit of a legitimate aim, and (iii) necessary in a democratic society.105
98
Texas v Johnson 491 US 397, 408 (1989).
99
Glimmerveen v Netherlands (1982) 4 EHRR 260.
100
101
Lawless v Ireland (No. 3) [1961] 1 EHRR 15 (Judgment on 1 July, 1961).
102
Siracusa Principle on the Limitation and Derogation Provision in the International Covenant on Civil and
Political Rights, Un Doc E/CN.4/ 1985/4.
103
Handyside v United Kingdom [1976] ECHR 5493/72 (Judgment on 07 December, 1976).
104
Rios et al v Venezuela IACtHR (2009) Series C No 194, para 346.
105
Handyside v UK App no 5393/72 (ECtHR, 7 December 1976) para 49; Sunday Times v UK (No 1) App no
6538/74 (ECtHR, 26 April 1979) (‘Sunday Times’) para 45; Ceylan v Turkey App no 23556/94 (ECtHR 8 July 1999)
(‘Veylan’) para 24; Murat Vural v Turkey App no 9540/07 (ECtHR, 21 January 2015) (‘Murat Vural’) para 59;
Perincek para 124; Francisco Matorell v Chile (IACtHR, 3 May 1996) para 55; Herrera-Ulloa v Costa Rica,
Preliminary Objections, Mertis, Reparations and Costs Judgment (IACtHR, 2 July 2004) para 120; IACHR, ‘Report
of the Special Rapporteur for Freedom of Expression’ (2009) OEA/SER L/V//II Doc 51 para 626; IACHR 2013
paras 58-64.
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a. The Prosecution was Prescribed by Law
A statute is prescribed by law if it has a basis in domestic law,106 and is accessible, foreseeable,
and precise, and it contains adequate safeguards.107 If a law gives the citizens an adequate
indication of legal rules applicable to a given case, the law is accessible.108 The law is
foreseeable if it is precise enough to enable citizens to regulate their conduct 109 and predict the
consequence of non-compliance.110
It is very evident that that the terms ‘extremist or seditious message, or seek to incite hatred,
violence, or disrupt the democratic process’ are not vague or broad. To keep pace with the
changing social circumstances, laws need not be absolutely precise.111 The ESA was passed to
prevent public disorder which could be initiated from elections-based speech inciting hatred and
violence.112
106
Hinczewski v Poland [2010] App no 34907/05 (ECtHR, 5 October 2010).
107
Silver and Others v United Kingdom [1983] Series A no 61; The Sunday Times v United Kingdom [1991] App No
13166/87 (ECtHR, 26 November 1991); Rekvényi v Hungary [1999] App no 25390/94 (ECtHR, 20 May 1999);
Gaweda v Polnad [200] App no 26229/95 (ECtHR, 14 March 2002); Weber and Sarabia v Germany App no
54934/00 (ECtHR, 29 June 2006) (‘Weber’) para 23.
108
The Sunday Times v United Kingdom [1991] App No 13166/87 (ECtHR, 26 November 1991).
109
Rekvényi v Hungary [1999] App no 25390/94 (ECtHR, 20 May 1999).
110
Kruslin v France [1990] Series A no 176 A; Huvig v France [1990] Series A no 176 B.
111
Müller v Switzerland App no 10737/84 (ECtHR, 24 May 1988) (‘Müller) para 29; Kokkinakis v Greece App no
14307/88 (ECtHR, 25 May 1993) (‘Kokkinakis’) para 40; Lindon, Otchokovsky-Laurens and July v France App no
21275/02 (ECtHR, 22 October 2007) (‘Lindon’) para 41; Delfi AS v Estonia App no 64569/09 (ECtHR, 10 October
2013) (‘Delfi October 2013) paras 71, 75.
112
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The right to an appeal is an adequate safeguard.113 It has been highlighted by the UNHRC that
the judiciary is an appropriate check against the executive.114 Ballaya’s appeal to the Supreme
Court of Amostra evinces that the ESA has adequate safeguards.115
b. The prosecution was in pursuance of a legitimate aim
Maintaining public order and protecting the nation’s security are state’s responsibility and as a
part of these responsibilities, the state may exercise its power through the parliament, courts, or
other competent independent bodies.116 To safeguard the rights of the citizens, the state must take
strong measures banning all types of hate speech.117 The ESA was promulgated to prevent hate
speech, violence and public disorder in the period of exigency.118 Ballaya’s column falsely
alleged the election as a ‘sham for Zasa political gain’,119 led to a violent demonstration just
before the election. Thus government of Amostra’s aim to protecting public order is legitimate.
113
Klass v Germany App no 5029/71 (ECtHR, 6 September 1978) (‘Klass’) para 56; Malcolm Ross v Canada UN
Doc CCPR/C/70/D/736/1997 (HRC, 18 October 2000) (‘Malcolm Ross’) para 11,4; Uzun v Germany App no
35623/05 (ECtHR, 2 September 2010) (‘Uzun’) para 72; Gurtekin v Cyprus App nos 60441/13, 68206/13, 68667/13
(ECtHR, 11 March 2014) (‘Gurtekin’) para 28.
114
Malcolm Ross v Canada UN DocCCPR/C/70/D/736/1997 (HRC, 18 October 2000) (‘Malcolm Ross’) para 11.5.
See also Klass v Germany App no 5029/71 (ECtHR, 6 September 1978) (‘Klass’) para 56.
115
116
UN Commission on Human Rights, ‘The Siracusa Principles on the Limitation and Derogation Provisions in the
International Convention on Civil and Political rights’ (Siracusa, 28 September 1984)
<http://www.uhhcr.org/refworld/docid/4672bc122.html> accessed 10 October 2016
117
ICCPR (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, art 20.
118
119
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c. The prosecution was necessary in a Democratic Society and was proportionate to
the aim pursued
A restriction of speech must be necessary in a democratic society.120 Necessity must meet the
standards of two conditions in a democratic society; firstly, there should exist a pressing social
need; and secondly, the measure is proportionate to the legitimate aim 121 and reasonable.122
Moreover, the proscription by the law was necessary to protect the welfare of the community.123
There was a pressing social need to prosecute Ballaya as she engaged in hate speech. There was
a recurrent clash between two religious sects124, in that circumstance the government has
necessity to impose a restriction to prevent public disorder. Ballaya’s column led to a violence
protest by instigating religious hatred.
Proportionality requires that the states must not act further than that is necessary to achieve the
relevant legitimate aim,125 so as to balance the interests of the community and the individuals.126
120
Tristán Donoso v Panamá IACtHR (2009) Series C 193, para 110.
121
Handyside v United Kingdom[1986] Series A no 24; The Observer and the Guardian v United Kingdom [1001]
Series A no 216; The Sunday Times v United Kingdom [1991] App no 13166/87 (ECtHR, 26 November 1991);
Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political
Rights, UN Doc E/CN 4/1985/4, cl I(A)(10)(b) and (d).
122
Toonen v Australia Communication No 488/1992 [1994] Doc CCPR/50/D/488/1992 (1994) (HRC); Sarah
Joseph, Jenny Schultz, Melissa Castan and Elizabeth Evatt, ‘The International Covenant on Civil and Political
Rights: Cases, Materials and Commentary’ (2ndedn, OUP 2005) p 483.
123
Ginsberg v New York 390 US 629, 636 (1968); Moot proposition, para 3.
124
125
UN Economic and Social Council, Un Sub-Commission on Prevention of Discrimination and Protection of
Minorities, ‘Siracusa Principles on the Limitation and Derigation of provision in the ICCPR’ (1984) Annex, UN
Doc E/CN 4/1984/4 principle 11; HRC, ‘General Comment 22’ (30 July 1993) UN Doc CCPR/C/21/Rev 1/Add 4
para 8; HRC, ‘General Comment 34’ (12 September 2011) UN Doc CCPR/C/GC/34 (‘General Comment 34’) para
34.
Cossey v UK App no 10843/84 (ECtHR, 27 September 1990) para 37; Rolv Ryssdal, ‘Opinion: The Coming Age
126
of the European Convention on the Human Rights’ (1996) 1 European Human Rights Law Review 18, 26; Ozgur
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Abusive speech is not protected and meting out punishment for such criminal act is subsequently
justified.127 Ballaya was fined $300,000128 as she was found guilty under section 3 of the ESA.
The maximum punishment provided under this Act is imprisonment for two years or fine for an
amount of $500,000.129 Ballaya was fined $300,000 and thus, her sentence was not excessive.
ISSUE- C: AMOSTRA HAS JURISDICTION TO OBTAIN AND ENFORCE THE CIVIL
ORDER AGAINST SEESEY IN AMOSTRA AND SARRANTO.
Amostra has jurisdiction to obtain and enforce the civil order against SeeSey in Amostra and
Sarranto. Respondents submits that the rule of sovereign territorial jurisdiction is not absolute
[I], subsidiary and parent company shall be considered a same legal entity for jurisdictional
purpose [II], nature of SeeSey constituted minimum contact with forum state and targeted the
forum state Amostra [III].
I. The rule of sovereign territorial jurisdiction is not absolute.
Though every nation holds exclusive jurisdiction within its territory; 130 and any extraterritorial
exercise of jurisdiction potentially infringes on the sovereignty of another state,131 but the rule of
Gundem v Turkey App no 23144/92 (ECtHR, 16 March 2000) (‘Ozgur’) para 43; Christine Goodwin v UK App no
28957/95 (ECtHR, 11 July 2001) para 72.
127
Cantwell v Connecticut 310 US 296, 309-10 (1940).
128
129
130
Thomas Hobbes, Leviathan (first published 1651, Richard Tuck ed, Cambridge University Press 1991) 9-10 ;
Jean Bodin, Six Books of The Commonwealth (first published 1576, MJ Tooley trans 1955) 7-8.
131
Karen Halverson, ‘Is a Foreign State a "Person"? Does it Matter?: Personal Jurisdiction, Due Process, and the
Foreign Sovereign Immunities Act’ (2001) 34 NYU J INT'L L & POL 115, 135-36.
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sovereign territorial jurisdiction is not absolute as there are several exceptions where sovereignty
may be encroached upon.132 According to international law, a state may subject an
extraterritorial conduct to its jurisdiction with the following conditions; (i) when there is a
"substantial and bona fide connection" between the subject-matter and the jurisdiction's source,
(ii) the “principle of non-intervention in the domestic or territorial jurisdiction of other states”,
(iii) and the principle of proportionality is observed.133
In the present case, since SeeSey has many users in Amostra134 and also owns a profitable
subsidiary company, named ‘SeeSALES’, which works to promote the use of SeeSey by
Amostra businesses in the forum state135, therefore, it is legitimate to exercise jurisdiction over
SeeSey in Amostra.
Apart from obtaining a civil order against SeeSey and enforcing it in forum state, Amostra can
also do the same in defendant’s state under the “rule of comity”. 136 In international law, the “rule
of comity” denotes the concept of recognition by one state to the legislative, executive or judicial
acts another state having due regard to international duty so far as they are permissible within the
scope of domestic law.137
132
Restatement (Third) of Foreign Relations Law of The United States (1986) s 421.
133
Ian Brownlie, Principles Of Public International Law (6th ed 2003) 287-88.
134
135
136
Joel R. Paul, ‘The Transformation of International Comity’ (2008) 71:19 Law & Contemporary Problems 22.
137
Hilton v Guyot 159 US 113, 163-64 (1895).
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II. Subsidiary and parent company shall be considered a same legal entity for jurisdictional
purpose.
Albeit the fact that separate entity of both subsidiary and its parent company is shielded by
corporate veil,138 yet both subsidiary and parent company are treated as same for the purpose of
jurisdiction.139 The court took a distinctive approach to cases dealing with the matter of
jurisdiction over a foreign corporation from other classes of cases that deal with the issue of
liability of the parent company for an act of its subsidiary.140
In the current dispute, as the subsidiary company ‘SeeSALES’ is owned by the parent ‘SeeSey’,
and ‘SeeSALES’ is solely working to promote use of ‘SeeSey’ in Amostra business,141 so both
the entities are regarded to conduct the same business and are of unitary nature.142 Moreover, the
subsidiary present in Amostra conducts its business in such a manner, and to such an extent that
its “actual presence” is established.143 Given the above descriptions, the presence of a subsidiary
is sufficient to make parent ‘SeeSey’ subject to Amostra’s jurisdiction.
138
Ebbew Value Urban Area Distt Council v South Wales Traffic Area Licensing Authority (1951) 2 K B.
139
R H Herron Co v West Side Elec Co (1912) 18 Cal App 778, 124 Pac 455.
140
Colonial Trust Co v Montello Brick Works (1909) 172 Fed 310. See also Buie v Chicago R I & P, Ry Co (1901)
95 Tex 51, 65 S W 27.
141
142
Goodyear Dunlop Tires Operations, SA v Brown 131 S Ct 2846 Supreme Court 2011.
143
Bank of America v Whitney Cent Nat Bank (1923) 261 US 171, 67 L Ed 594, 43 Sup Ct Rep 311.
20 | P a g e
III. Nature of SeeSey constituted minimum contact with forum state and targeted the
forum state Amostra
a. Nature of ‘SeeSey’ website is interactive enough to constitute ‘minimum contact’ with
forum state required for exercising personal jurisdiction.
According to the ‘sliding scale rule’, also known as ‘Zippo rule’144, the personal jurisdiction over
an entity depends on the level of interactivity of its website145, and the appropriateness of
jurisdiction should be directly proportionate to the nature of the commercial activity that an
entity conducts over the internet.146 The courts used this test to assess whether or not an out-state
defendant who runs a website established minimum contacts with the forum state.147
In the present dispute, SeeSey’s website contains several features of interactive nature, including
‘log in’ mechanism148 which generally requires password, ‘paid ads’149 and ‘see more lists’ etc.
Some additional factors that courts look at to determine interactivity of a website include number
of views it has received, the number of various locations within the state from where this website
have been accessed to, and it’s mailing list.150 Apart from the online activities, the SeeSey also
conducts some additional offline activities that include promoting use of SeeSey through its
144
Eric C Hawkins; ‘General Jurisdiction and Internet Contacts: What Role, if any, Should the Zippo Sliding Scale
Test Play in the Analysis?’ (2006) 74 Fordham Law Review 1-2.
145
Zippo Manufacturing Company v Zippo Dot Com, Inc 952 F Supp 1119 (W D Pa 1997).
146
Zippo Manufacturing Company v Zippo Dot Com, Inc952 F Supp at 1126.
147
VIAD Corp v McCormick Int’l No.A05-1567 (2006).
148
149
150
Minnesota v Granite Gate Resorts, 567 N W 2d 715 (Minn Ct App 1997).
21 | P a g e
Subsidiary in the forum state151which makes the interaction of highest level.152 In several
decisions153, courts had gone beyond online interaction and had looked into some ‘additional
contacts’ to satisfy due process requirements for jurisdiction, and further held that limited nature
of interactions would be reimbursed by some ‘additional contacts’.154 Given the above rulings, it
is submitted that interactive nature of SeeSey coupled with some ‘additional contacts’ is
sufficient to make SeeSey subject to Amostra’s jurisdiction.
(b) SeeSey has targeted the forum state Amostra
In the course of determining personal jurisdiction over internet defendants, the court will look
into whether the defendants had “targeted” the forum state with its business.155 Personal
jurisdiction over a defendant could be exercised on the basis of sales of its products to district
residents.156 The court noted that the defendant solicited, and perhaps targeted, its products on its
web site to appeal directly to the residents of district.157 Traditional jurisdictional framework
most similar to operating a web site is placing a product into the “stream of commerce”. 158 In
another U.S. case, the court found jurisdiction over a foreign company based on its website
151
152
EDIAS Software Intern v BASIS Intern Ltd, 947 F Supp 413 (D. Ariz 1996).
153
Starmedia Network Inc v Star Media Inc, 2001 WL 417118 (SDNY 2001); Hsin Ten Enterprise USA, Inc v Clark
Enterprises 138 F Supp 2d 449 (SDNY 2000).
154
Hsin Ten Enterprise USA, Inc v Clark Enterprises, 138 F Supp 2d 449 (2000).
155
Tricia Leigh Gray, ‘Minimum Contacts in Cyberspace: The Classic Jurisdiction Analysis in a New Setting’
(2002) Journal of High Technology Law.
156
The Sports Auth Michigan, Inc v Justballs, Inc, 97 F Supp 2d 806 (ED Mich 2000).
157
158
22 | P a g e
because of the fact that website’s contents reflected the defendant’s intention to target the U.S.
market.159
Similarly, in the present context, since SeeSey owned a subsidiary, in Amostra, which mostly
worked for promoting use of SeeSey and purchase of paid ads on SeeSey160, and the website also
was accessible from Amostra, so it is reasonably presumed that SeeSey has targeted the forum
state. Therefore, it is submitted that Amostra will have personal jurisdiction over SeeSey because
it has purposefully availed itself of privilege of doing business in Amostra by targeting the
country.161
159
Quokka Sports, Inc v Cup Int’l Ltd, 99 F Supp 2d 1105 (N D Cal 1999).
160
161
J McIntyre Machinery Ltd v Nicastro, 131 S Ct 2780 (2011).
23 | P a g e
ISSUE-D: AMOSTRA’S CIVIL ORDER AGAINST SEESEY VIOLATES
INTERNATIONAL PRINCIPLES, INCLUDING ARTICLE 19 OF THE UDHR AND
THE ICCPR
Amostra issued a civil order against SeeSey under the Stability and Integrity Act. Respondent
submits that civil order is consistent with article 19 of the UDHR and the ICCPR [I] and Civil
order is permissible under article 29(2) of UDHR [II].
I. Civil order is consistent with article 19 of the UDHR and the ICCPR.
Respondent submits that the rights assured under article 19 of the UDHR and the ICCPR are not
absolute162 and may be curbed by limitations imposed by the law.163
(a) Civil order to take down any unlawful content can be imposed upon the
intermediary.
According to OECD classification, any participative networked platform like SeeSey does not
create or edit164 its published content.165 SeeSey is an online based social media that works as a
162
Worm v Austria 83/1996/702/894 (ECtHR, 29 August, 1997); Devidas Ramchandra Tuljapurkar v State of
Maharashtra and Ors (2015, SCC) paras 5, 30, 80 Criminal Appeal No. 1179 of 2010; Sahara India Real Estate
Corpn Ltd v SEBI (2012) 10 SCC 603; Md. Riazuddin Khan and another v MahmudurRahman and others (2010), 39
CLC (AD) at paras 13, 30; State v Chief editor, Manabjamin and others (2005) 57 DHR (HCD) 359;
MostafizurRahman v Bangladesh and others (1991) 20 CLC (HCD); Samresh Bose and Anr. v Amal Mitra and Anr
(1985) 4 SCC 289; Roth v United States (1957) 354 US 476; State of Oregon v Earl A Henry 732 P 2d 9 (1987).
163
Human Rights Council resolution 20/8, The promotion, protection and enjoyment of human rights on the
Internet, A/HRC/20/L.13 (29 June 2012) <undocs.org/A/HRC/20/L.13> accessed 19 October 2016; UDHR (adopted
10 December 1948 UNGA Res 217 A(III) art 29(2); ICCPR (adopted 16 December 1966, entered into force 23
March 1976) 999 UNTS 171 art 19(3); ACHPR (adopted 27 June 1981, entered into force 21 October 1986) (1982)
21 ILM 58 art 9; ACHR (adopted 22 November 1969, entered into force 18 July 1978) art 11; Convention for the
Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) art 10(2);
ICCPR(adopted 16 December 1966, entered into force 23 March 1976); 999 UNTS 171 arts 21 and 22; ACHPR
(adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58 arts 10-11; American Convention on
Human Rights (adopted 22 November 1969, entered into force 18 July 1978) (ACHR), arts 15-16; ECHR (adopted 4
November 1950, entered into force 3 September 1953) art 11; Chaplinsky v New Hampshire 315 US 567 (1941).
24 | P a g e
hosting166 intermediary. The E-Commerce Directives (ECD) in the European Union has dealt
with the liabilities of the intermediary.167 It provides that an intermediary is liable for the
unlawful contents generated by its users if (a) it has actual knowledge of such illegal contents or
(b) upon having knowledge or awareness of such illegal matters fails to remove or disable access
to the information expeditiously.168 The illegality of the contents can be defined under national
law.169 EC Directives also permit a court or administrative authority to require the service
provider to terminate any infringing content in accordance with the particular state’s legal
system.170 The Amostran court held that the column of Ballaya was unlawful171 since it
164
165
OECD, The Role of Intermediaries in Advancing Public Policy Objectives (1stedn, OECD Publishing 2009)
<http:/dx.doi.org/10.1787/9789264115644-en> accessed 19 October 2016.
166
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 ('Directive on electronic
commerce') art 14.
167
European Union Regulatory Framework for Commerce (WTO, 18 June 2013)
<http://www.wto.org/english/tratop_e/serv_e/wkshop_june13_e/sparas_e.pdf> accessed 19 October 2016.
168
commerce')art 14(2) & art 14(3); European Union Regulatory Framework for Commerce, (WTO, 18 June 2013)
<http://www.wto.org/english/tratop_e/serv_e/wkshop_june13_e/sparas_e.pdf> accessed 19 October 2016; Opinion
of the AG in joined cases C-236/08 to C-238/08 of 22 September 2009; Declaration on Freedom of Communication
on the Internet, principle 6.
169
Declaration on Freedom of Communication on the Internet (Adopted by the Committee of Ministers on 28 May
2003), principle 6.
170
commerce') art 14(3); European Union Regulatory Framework for Commerce (WTO, 18 June 2013)
<http://www.wto.org/english/tratop_e/serv_e/wkshop_june13_e/sparas_e.pdf> accessed 10 October 2016.
171
25 | P a g e
constituted an incitement to hatred and violence,172 and following the decision the court ordered
SeeSey to remove the illegal content.
Removal of illegal content upon having notice or judicial takedown order has been adopted in
various legislations of U.S.A.,173 South Korea174 and U.K.175 Facebook176 and Twitter177 have
policies to take down unlawful post when they receive notice or judicial takedown order which is
similar to that of SeeSey. In the present case, the judicial order from the Amostran Court was not
violative of the international law as SeeSey had ‘actual knowledge’178 of illegal contents and
received an order from the judicial authority to remove that unlawful post.179
Take down order of a prima facie illegal content is consistent with international principles,180
since it can be counter-balanced by following ‘put back’181 procedure. So the contents can be
subject to judicial order if it is tantamount to be prima facie illegal.
172
173
Digital Millennium Copyright Act (DMCA) (USA) s 512(c).
174
Act on Promotion of Information and Communication Network Utilization and Information Protection (amended
in 2002) (Korea); Copyright Act 2009 (Ghana).
175
Defamation Act 2013 (UK), s 13(1)(a).
176
Community Standard < https://www.facebook.com/communitystandards#> accessed 05 October 2016).
177
The Twitter Rules <https://support.twitter.com/articles/18311> accessed 5 October 2016; Report copyright
infringement <https://support.twitter.com/forms/dmca> accessed 5 October 2016.
178
L’Oréal SA and Others v eBay [2011] C-324/09 para 119.
179
Joint Declaration by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE
Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression; 3 rd Report
C.III.3(c), in particular country report Netherlands and UK; Christian Ahlert, Chris Marsden and Chester Yung,
‘How ‘Liberty’ Disappeared from Cyberspace: The Mystery Shopper Tests Internet Content Self-
Regulation’<http://pcmlp.socleg.ox.ac.uk/wp-content/uploads/2014/12/liberty.pdf> accessed 11 October 2016.
Corey Omer, ‘Intermediary Liability for Harmful Speech: Lesson from Abroad’ (Volume 28, Harvard Journal of
180
Law & Technology, 2014)
26 | P a g e
Carrying weapons is illegal in various countries like Canada, Australia, United States and
Norway.182 To determine the gravity of Ballaya’s column in respect of instigating and inciting
violence and public disorder, the comments of the viewers to carry weapons cannot be
overlooked.183 The comments exhibited the determination of the viewers to carry weapons in the
demonstration to cause violence on the day of Resistance. An anti-government public protest was
echoed through this column which was tantamount to speech inciting people to rebel against
government authorities184 and hatred against Zasa religious sect.
Moreover, the court order is not vague or overbroad. Any ‘offensive’ content inciting religious
hatred is unlawful.
(B) The civil order has no chilling effect.
The presence of a chilling effect requires a distinct and palpable injury185 but not merely a fictive
one.186 Chilling effect cannot arise from the mere presence of a governmental measure causing
no specific harm187 or the possibility of abuse.188 Even if chilling effect is caused, it is justified
181
Christian Ahlert, Chris Marsden and Chester Yung, ‘How ‘Liberty’ Disappeared from Cyberspace: The Mystery
Shopper Tests Internet Content Self-Regulation’ <http://pcmlp.socleg.ox.ac.uk/wp-
content/uploads/2014/12/liberty.pdf> accessed 1 October 2016.
182
‘How do U.S. gun laws compare to other countries?’ <http://www.pbs.org/newshour/rundown/how-do-u-s-gun-
laws-compare-to-other-countries/> accessed 1 October 2016.
183
Delfi AS v Estonia App no 64569/09 (ECtHR, 10 October 2013); MTE v Hungary App No 22947/13 (ECtHR, 2
February 2016).
184
Murphy v Ireland App no 44179/98 (ECtHR, 10 July 2003).
185
O'Shea v Littleton 414 US 488 (1974); Johnson v Stuart 702 F 2d 193 (9th Cir 1983); Meese v Keene 481 US
465 (1987).
186
Los Angeles v Lyons 461 US 95 (1983); Johnson v Stuart 702 F 2d 193 (9th Cir 1983).
187
Melvin R Laird v Arlo Tatum 408 US 1 (1972).
27 | P a g e
by the overriding public interest.189 A court order is also protected from the plea of chilling effect
on the same ground.190 Thus, the civil order has no chilling effect.
II. Civil order is permissible under article 29(2) of UDHR.
The rights under Articles 18 and 19 of the UDHR are not absolute 191 and may be subject to
restrictions.192 The three-fold test193 to judge the validity of restrictions under Article 29 (2) is
met in this case.
(a) Restriction by civil order is prescribed by law.
A restriction will be regarded as prescribed by law if it is imposed by the domestic law 194 and it
must be accessible and foreseeable.195 The law must be precise as citizen must be able to foresee
the consequences which a given action may entail, these consequences need not be foreseeable
188
Davis v Ichord 442 F 2d 1207 (1970).
189
Goodwin v United Kingdom Application no 28957/95 (ECtHR, July 11, 2002) paras 39, 45.
190
Goodwin v United Kingdom Application no 28957/95 (ECtHR, July 11, 2002) paras 39, 45.
191
Worm v Austria (1997) 25 EHRR 454.
192
UDHR(adopted 10 December 1948) UNGA Res 217 A (III) art 29; ICCPR (adopted 16 December 1966, entered
into force 23 March (1976) 999 UNTS 171 art 10(2); ACHR (adopted 22 November 1969, entered into force 18 July
1978) 1144 UNTS 123 art 13(2); Constitution of India 1950, art 19(2); Chaplinsky v New Hampshire 315 US 568
(1942); Dinesh Trivedi v Union of India (1997) 4 SCC 306 (India); State of West Bengal v SubodhGopal Bose AIR
1954 SC 92 (India).
193
The Sunday Times v United Kingdom (1979-80) 2 EHRR 245; Albert Womah Mukong v Cameroon
Communication No 458/1991, UN Doc CCPR/C/51/D/458/1991 (1994) (HRC); Herrera-Ulloa v Costa Rica Inter-
American Court of Human Rights Series C No 107 (2 July 2004)
194
Hinczewski v Poland App no 34907/05 (ECtHR, 5 October, 2010).
195
Silver and Others v United Kingdom [1983] Series A no 61; The Sunday Times v United Kingdom [1991] App no
13166/87 (ECtHR, 26 November 1991); Rekvényi v Hungary [1999] App no 25390/94 (ECtHR, 20 May 1999);
Gaweda v Poland [2002] App no 26229/95 (ECtHR, 14 March 2002).
28 | P a g e
with absolute certainty.196 In the present case, SIA is sufficiently precise and permissibly wide to
keep pace with the changing technological advancements.197
Civil order was given which vividly revealed the existence of a domestic law which is accessible,
comprehensible, foreseeable and precise. A law is foreseeable if it is precise enough to enable
citizens to regulate their conduct.198 The SIA has stated specifically upon what conditions a
material will be regarded as illegal and when a service provider can be compelled to remove a
post.
The SIA is applicable to SeeSey. SeeSey is the most popular social media and news source in
Amostra,199 and it is operating business in Amostra through its subsidiary company
‘SeeSALES.’200 It is very evident that a national legislation cannot be unascertainable and
inaccessible201 to a social media platform like SeeSey.
(b) Restriction by civil order is in pursuant of legitimate aim.
The respondent submits that the impugned restriction pursues legitimate aim of protecting public
order.202 In prohibiting speech that incites violence through online sources, Amostra has a
196
Delfi AS v Estonia App no 64569/09 (ECtHR, 10 October 2013) para 121; Lindon, Otchakovsky-Laurens and
July v France App nos 21279/02 & 36448/02 (ECHR, 22 October 2007).
197
Delfi AS v Estonia App no 64569/09 (ECtHR, 10 October 2013) para 121; Lindon, Otchakovsky-Laurens and
July v. France [GC] nos 21279/02 and 36448/02 (ECHR, 22 October 2007).
198
The Sunday Times v UK [1991] App no 13166/87 (ECtHR, 26 November 1991); Rekvenyi v Hungery [1999]
ECHR 1999-III 34.
199
200
201
Malone v UK (1984) 7 EHRR 14; Leander v Sweden (1987) 9 EHRR 433; Kruslin v France (1990) 12 EHRR
546.
202
ICCPR (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 art 19(3).
29 | P a g e
legitimate interest in preventing disorder and crime.203 In order to maintain public order,
Amostra can exercise its power through the parliament, courts or other competent independent
bodies.204 Amostra has a duty to protect its citizens205 including protection from the harmful use
of technology to incite violence.206
In the present case the restriction was imposed in the midst of extreme tension and social unrest
between the religious Yona sect and the government. Ballaya’s column was an incitement to
violence against the government and Zasa religious sect. In response to her column, the viewers
expressed their determination to carry and use weapons against the government and Zasa sect
during the protest.207Both the column and the comments posed a great threat 208 of clear and
imminent danger209 against public order of Amostra.
203
ICCPR (adopted 16 December 1966, entered into force 23 March (1976) 999 UNTS 171 (ICCPR) art 19(3).;
Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR) art 29(2);
Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human
Rights, as amended) (ECHR) art 10.
204
UN Commission on Human Rights, ‘The Siracusa Principles on the Limitation and Derogation Provisions in the
International Covenant on Civil and Political Rights’ (Siracusa, 28 September 1984)
<http://www.unhcr.org/refworld/docid/4672bc122.html> accessed 11 October 2016.
205
Plan de Sánchez Massacre v Guatemala IACtHR (2004) Series C No 116, para 112; Zimbabwe Human Rights
NGO Forum v Zimbabwe (2006) AHRLR 128 (ACHPR 2006) para 143.
206
Delfi AS v Estonia App no 64569/09 (ECtHR, 16 June 2015) para 110.
207
208
Virginia v Black 155 L. Ed. 2d 535 US 551, 552, 553 (2003); See also Watts v United States 22 L. Ed. 2d. 664,
667 (1969).
209
Schenck v United States 63 L Ed 470. See also, Gompers v Buck's Stove & Range Co 221 US 418; Abrams v
United States 250 US 616 (1919); Terminiello v City of Chicago 93 L Ed 1131 (1949) 1134-1135; Brandenburg v
Ohio 23 L Ed 2d 430 (1969) 434-435 & 436; S Rangarajan v P Jagjivan & Ors (1989) 2 SCC 574 [45].
30 | P a g e
(c) Restriction is necessary in a democratic society.
A restriction upon freedom of expression is necessary in a democratic society if it (1)
corresponds to a pressing social need (2) is proportionate to the legitimate aim pursued.210
There exists a pressing social need for the impugned restriction. It is clear from the fact that
violence is likely to occur any time since the alleged post already have caused one. 211 It is
paramount duty of a state to protect its citizen212 in executing this duty social media poses new
challenges as social media intermediaries are powerful, virulent and broad-reaching platform for
spreading hatred, terror and violence.213
The popularity and easy accessibility of SeeSey and existing tension in Yona community render
occurrences of violence imminent. State interest is of paramount importance and an important
factor to justify an infringement of the right.214 Furthermore, it is well established that the State
enjoys a wide margin of appreciation in determining a threat to public interest and developing an
adequate response thereto.215
210
Handyside v United Kingdom [1976] (ECtHR, 07 December 1976) [48]; UNHRC ‘General Comment 34’ in
‘Article 19: Freedoms of Opinion and Expression’ (2011) UN Doc CCPR/C/GC/34 paras 22, 33–34; UNHRC April
2013 Report para 29; Delfi v Estonia App no 64569/09, (ECtHR, 16 June 2015) para 131.
211
212
Plan de Sánchez Massacre v Guatemala IACtHR (2004) Series C No 116, para 112; Zimbabwe Human Rights
NGO Forum v Zimbabwe (2006) AHRLR 128 (ACHPR 2006) para 143.
213
UNHRC, ‘Report of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination,
Xenophobia and Related Intolerance’ (6 May 2014) UN Doc A/HRC/26/49 paras 2, 16–19. See also UNHRC,
‘Report of the Special Rapporteur on Minority Issues’ (5 January 2015) UN Doc A/HRC/28/64 (‘UNHRC January
2015 Report’) paras 35–42, 76; Comprehensive Study on Cybercrime, Draft February 2013, UNODC
<https://www.unodc.org/documents/organized-
crime/UNODC_CCPCJ_EG.4_2013/CYBERCRIME_STUDY_210213.pdf> accessed 12 October 2016.
214
Zana v Turkey (1997) 27 EHRR 667; Gobind v State of MP AIR 1975 SC 1378.
215
Handyside v United Kingdom (1986) Series A no 24; Leander v Sweden (1987) 9 EHRR 433; Zana v Turkey
(1997) 27 EHRR 667; Sürek v Turkey App no 23927/94 (ECtHR, 8 July 1999) para 62.
31 | P a g e
The restriction is proportionate to the legitimate aim.216 The test of proportionality or
reasonableness217 is satisfied when the least onerous restriction is imposed.218 Respondent
submits that the restriction is reasonable and least onerous. The court ordered to remove the
illegal and offensive content without pressing any pecuniary or criminal liability on SeeSey.
Here the court granted SeeSey immune219 from any liability complying with the international
principle and only gave a least onerous takedown order.
Moreover, the restriction is content-specific220 as it puts an imposition just to remove the
offensive contents complying with the international principles. Thus, the restriction is
reasonable.
216
Handyside v United Kingdom (1986) Series A no 24; Clause I(A)(10)(d), Siracusa Principles on the Limitation
and Derogation Provisions in the International Covenant on Civil and Political Rights, U.N. Doc. E/CN.4/1985/4.
217
Toonen v Australia [1994] PLPR 33 (HRC); District Registrar & Collector, Hyderabad v Canara Bank AIR
2005 SC 186 (India); Sarah Joseph and others, ‘The International Covenant on Civil and Political Rights: Cases,
Materials and Commentary’ (2nd edn., OUP 2005) 483.
218
Shelton v Tucker 364 US 479 (1960); Nebraska Press Association v Stuart 427 US 539 (1976); Compulsory
Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85, Inter-
American Court of Human Rights Series A No 5 (13 November 2003); Palamara-Iribarne v Chile IACtHR (2005)
Series C.
219
commerce') art 14; Manila Principles on Intermediary Liability
<https://www.eff.org/files/2015/10/31/manila_principles_1.0.pdf> accessed 20 October 2016.
UNHRC ‘General Comment 34’ in ‘Article 19: Freedoms of Opinion and Expression’ (2011) UN Doc
220
CCPR/C/GC/34, para 43.
32 | P a g e
PRAYER
In the light of the arguments advanced and authorities cited, the Respondent most humbly and
respectfully request this Honorable Court to adjudge and declare that:
1. Amostra’s prosecution of Ballaya under SIA has not violated international principles
including article 19 of both UDHR and ICCPR.
2. Amostra’s prosecution of Ballaya under ESA has not violated international principles
including article 10 of both UDHR and ICCPR.
3. Amostra has jurisdiction to obtain and enforce the civil order against SeeSey in both
Amostra and Sarranto.
4. Amostra’s civil order against SeeSey has not violated international principles including
article 19 of both UDHR and ICCPR.
On behalf of the Respondents, for this kind consideration, the Agents shall ever pray
All of which respectfully submitted
On this 21st Day of October, 2016
33 | P a g e

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219R

THE OXFORD PRICE MEDIA LAW MOOT COURT

BALLAYA & SEESEY

MEMORIAL FOR THE RESPONDENT

STATEMENT OF RELEVANT FACTS………………………………………….XXVI

A. AMOSTRA’S PROSECUTION OF BALLAYA UNDER THE SIA DID NOT VIOLATE

INTERNATIONAL PRINCIPLES, INCLUDING ARTICLE 19 OF THE UNIVERSAL DECLARATION OF

HUMAN RIGHTS (“UDHR”) AND ARTICLE 19 OF THE INTERNATIONAL COVENANT ON CIVIL

AND POLITICAL RIGHTS (“ICCPR”)………………………………………………….........................01

I. Prosecution of Ballaya under the ESA is consistent with Article 19 of the

UDHR and the ICCPR……………………………………………………02

a. Ballaya’s column “An Open Letter to the Oppressors” constitutes hate

a. The restriction must be prescribed by law…………………………….05

(i) The SIA is sufficiently precise…………………………………06

(ii) The SIA has adequate safeguard………………………………..08

b. The restriction has legitimate aim for protecting public order……….08

(i) The limitations serve a pressing social need…………………….10

(ii) The restriction is proportionate to the legitimate aim pursued….11

ISSUE B: AMOSTRA’S PROSECUTION OF BALLAYA UNDER THE ESA DOES NOT

VIOLATE INTERNATIONAL PRINCIPLES INCLUDING ARTICLE 19 OF UDHR

AND ARTICLE 19 OF THE ICCPR…………………………………………………….12

I. Amostra can exercise wide margin of appreciation regarding Ballaya’s

II. Prosecution of Ballaya is justified and permissible under article 29(2) of

a. The Prosecution was Prescribed by Law……………………………………..15

b. The prosecution was in pursuance of a legitimate aim……………………….16

c. The prosecution was necessary in a Democratic Society and was proportionate to

the aim pursued……………………………………………………………….17

ISSUE- C: AMOSTRA HAS JURISDICTION TO OBTAIN AND ENFORCE THE CIVIL

ORDER AGAINST SEESEY IN AMOSTRA AND SARRANTO……………………….18

I. The rule of sovereign territorial jurisdiction is not absolute……………..18

targeted the forum state Amostra…………………………………………..21

‘minimum contact’ with forum state required for exercising personal

(b). SeeSey has targeted the forum state Amostra………………….22

ISSUE-04: AMOSTRA’S CIVIL ORDER AGAINST SEESEY DOES NOT VIOLATE

INTERNATIONAL PRINCIPLES, INCLUDING ARTICLE 19 OF THE UDHR AND

b. The civil order has no chilling effect………………………………………......27

II. Civil order is permissible under article 29(2) of UDHR……………………….28

a. Restriction by civil order is prescribed by law…………………………………28

b. Restriction by civil order is in pursuant of legitimate aim……………………..30

c. Restriction is necessary in a democratic society……………………………….31

ACHR American Convention on Human Rights

ACHPR African Charter on Human and Peoples’ Rights

ACtHPR African Court on Human and Peoples’ Rights

AfCHR African Charter on Human and People’s Rights

AHRLR African Human Rights Law Reports

AIR All India Reports

App No Application Number

ECHR European Convention on Human Right

ECtHR European Court of Human Rights

ECR European Court Reports

EHR European Human Rights Reports (Strasbourg)

EHRR European Human Rights Reports

ESA Election Safety Act of 2016

FOE Freedom of Expression

HCD High Court Division

HRC Human Rights Committee

IACHR Inter-American Commission on Human Rights

ICCPR International Convention on Civil and Political Rights