(Applicants) V

[504A]
2017-2018
Price Media Law Moot Court Competition
Peaps & Scoops
(Applicants)
V.
The Federal Republic of Turtonia
(Respondent)
MEMORIAL FOR APPLICANTS
[4946 words]
TABLE OF CONTENTS
TABLE OF CONTENTS .......................................................................................................... i
LIST OF ABBREVIATIONS ................................................................................................. iii
LIST OF AUTHORITIES ........................................................................................................v
STATEMENT OF RELEVANT FACTS .............................................................................. xii
STATEMENT OF JURISDICTION .....................................................................................xix
QUESTIONS PRESENTED ................................................................................................... xx
SUMMARY OF ARGUMENTS ............................................................................................xxi
ARGUMENTS ..........................................................................................................................1
I. TURTONIA’S PROSECUTION OF PEAPS UNDER ODPA VIOLATES
INTERNATIONAL PRINCIPLES INCLUDING ARTICLE 19 OF THE ICCPR ............1
A. Denying Peaps the protection under section 3 (b) of the ODPA constitutes a violation of
his right to freedom of expression ........................................................................................1
1- The Fundamental Nature of Freedom of Expression .....................................................1
2- Peaps’ post constitutes a highly-protected political speech ............................................3
B. The ODPA unnecessary and overly-restrictive language threatens unfettered criminal
sanctions and creates a chilling effect that inhibits public debate and stifles dissent ..............5
1- Turtonia imparted an unforeseeable and disproportionately harsh punishment on Peaps
.........................................................................................................................................5
2- The ODPA creates a chilling effect that inhibits public debate and stifles dissent .........7
i
II. TURTONIA’S PROSECUTION OF SCOOPS UNDER THE ODPA VIOLATES
ARTICLE 19 OF THE ICCPR .............................................................................................9
A. The ODPA violates Scoops’ freedom to impart information by lacking precision ............9
B. The ODPA challenges the users’ right to speech ............................................................ 12
III. TURTONIA’S PROSECUTION OF PEAPS UNDER IA VIOLATES
INTERNATIONAL PRINCIPLES INCLUDING ARTICLE 19 OF THE ICCPR .......... 14
A. IA fails to meet the standards of clarity and precision that enable citizens to foresee the
consequences of their conduct ............................................................................................ 14
B. Peaps conveyed no intention to incite violence, nor was his post likely to incite violence
.......................................................................................................................................... 15
IV. TURTONIA’S PROSECUTION OF SCOOPS UNDER THE IA VIOLATES
ARTICLE 19 OF THE ICCPR ........................................................................................... 17
A. The IA fails to clarify the key terms leading to an imprecise law ................................... 17
B. The imprecision of the notice and take-down procedure in the IA reflecting in the
discretion of the Court ........................................................................................................ 20
PRAYERS FOR RELIEF ....................................................................................................... 24
ii
LIST OF ABBREVIATIONS
ACHPR African Charter on Human and Peoples’ Rights
ACmHPR African Commission on Human and Peoples’ Rights
ACtHPR African Court of Human and Peoples’ Rights
ACHR American Convention on Human Rights
COE Council of Europe
CDA The Communication Decency Act of 1996
ECHR European Convention on Human Rights
eCommerce The Electronic Commerce Directive
ECtHR European Court of Human Rights
EU European Union
ICCPR International Covenant on Civil and Political Rights
IA Information Act of 2006
IACHR Inter-American Commission on Human Rights
IACtHR Inter-American Court of Human Rights
OAS Organization of American States
ODPA Online Dignity Protection Act of 2015
OSCE Organization for Security and Co-operation in Europe
SCtI Supreme Court of India
UDHR Universal Declaration of Human Rights
UK United Kingdom
UKHL United Kingdom House of Lords
UN United Nations
iii
UNCHR United Nations Commission on Human Rights
UNHRC United Nations Human Rights Committee
UNHCHR (Office of the) United Nations High Commissioner for Human Rights
UNGA United Nations General Assembly

U.S. United States of America
iv
LIST OF AUTHORITIES
INTERNATIONAL AND REGIONAL INSTRUMENTS
American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July
1978) (ACHR) .................................................................................................................. 1, 17
African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21
October 1986) 21 ILM 58 (ACHPR) .................................................................................. 1, 17
Council of Europe Convention on the Prevention of Terrorism (entered into force 1 June 3007)
ETS no 196............................................................................................................................ 16
European Convention on Human Rights (adopted 4 November 1950, entered into force 3
September 1953) 213 UNTS 1932 (ECHR) ................................................................... 1, 3, 17
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into
force 23 March 1976) 999 UNTS 171 (ICCPR) ................................................................. 1, 17
Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III)
(UDHR) ............................................................................................................................ 1, 17
AFRICAN COMMISSION ON HUMAN AND PEOPLE'S RIGHTS CASES
Lohé Issa Konaté v The Republic of Burkina Faso Comm no 004/2013 (ACmHPR, 2014) ...... 6, 7
Media Rights Agenda and Others v. Nigeria, Comm Nos 105/93, 130/94, 128/94 and 152/96
(ACmHPR, 1998) ....................................................................................................................2
EUROPEAN COURT OF HUMAN RIGHTS CASES
Alves Da Silvia v. Portugal App no 41665/07 (ECtHR, 20 October 2009) ................................. 16
Barford v Denmark App no 11508/85 (ECtHR, 22 February 1989) .............................................6
Castells v Spain App no 11798/85 (ECtHR, 23 April 1992) ........................................................6
v
Colombani and Others v France App no 51279/99 (ECtHR, 25 June 2002) ................................6
Dalban v Romania App no 28114/95 (ECtHR, 28 September 1999) ............................................6
De Haes and Gijsels v Belgium App no 19983/92 (ECtHR, 24 February 1997) ...........................6
Fatullayev v Azerbaijan App no 40984/07 (ECtHR, 22 April 2010) ............................................1
Giniewski v. France App no 64016/00 (ECtHR, 31 January 2006) ............................................ 16
Handyside v United Kingdom, App n 5495/72 (ECtHR, 7 December 1976) ........................... 2, 17
Karatos v. Turkey App no 23168/94 (ECtHR, 8 July 1999) ....................................................... 16
Lingens v. Austria, App n 9815/82, 8 EHRR 407 (ECtHR, 8 July 1986) .................................. 3, 8
Nilsen and Johnsen v Norway App no 23118/93 (ECtHR, 25 November 1999) ...........................6
Otto-Preminger-Institut v. Austria App no 13470/87 (ECtHR, 20 September 1994) ................. 16
Pihl v. Sweden, no 74742/14 (ECtHR, 7 February 2017) ........................................................... 21
Scharsach and News Verlagsgesellschaft v Austria App no 39394/98 (ECtHR, 13 November
2003) .......................................................................................................................................6
Sürek v. Turkey App no 26682/95 (ECtHR, 8 July 1999) .............................................................3
Taranenko v Russia App no 19554/05 (ECtHR, 15 May 2014) ....................................................7
The Sunday Times v. United Kingdom , App no. 6538/74, 2 EHRR 245 (ECtHR, 26 April 1979)
.......................................................................................................................................... 5, 15
Thorgeir Thorgeirson v Iceland App no 13778/88 (ECtHR, 25 June 1992) .................................6
INTER-AMERICAN COURT OF HUMAN RIGHTS CASES
Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism,
Advisory Opinion OC-5/85 Series A, No. 5 (IACtHR, 13 November 1985) ..................... 2, 3, 5
vi
OTHER CASES
Athukoral v. AG 5 May 1997, SD nos 1-15/97 (Supreme Court of Sri Lnka) ............................. 16
Ava v. Infonie and others, District Court of Puteaux, 28 September 1999 .................................. 12
Brandenburg v. Ohio, 395 U.S. 444 (United States Supreme Court, 27 February 1969) ............. 16
Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1124 (9th Cir. 2003) ............................ 10, 22
Cubby, Inc. v. CompuServe Inc., 776 F. Supp. 135 (S.D.N.Y. 1991) .......................................... 18
Hess v Indiana , 414 U.S. 105, 108 ( United States Supreme Court, 1973) ................................ 16
Leonardus Johannes Maria de Groot v The Netherlands Comm no 578/1994 UN Doc
CCPR/C/54/D/578/1994 (UNHRC, 1995).............................................................................. 14
Mukong v. Cameroon, Comm no. 458/1991 (UNHRC, 1994) ......................................................5
New York Times Co. v. Sullivan, 376 U.S. 254 ( United Stated Supreme Court, 1964) ............... 18
Paris Regional Court, Réf. 53061/96 (12 June 1996) ................................................................ 11
Parker v. Google, Inc., 422 F. Supp. 2d 492 (E.D.Pa. 2006), aff'd 242 Fed. Appx. 833 (3rd Cir.
2007) ..................................................................................................................................... 11
Rajagopal & Anor v. State of Tamil Nadu, 6 SCC 632 (Supreme Court of India, 1994) ...............9
Religious Technology Center v. Netcom On-Line Com., 923 F. Supp. 1231 (N.D. Cal. 1995) .... 14
Reno v. American Civil Liberties Union, 521 U.S. 844 (United States Supteme Court, 1997) ......9
S Rangarajan v. P Jagjivan Ram (SCtI, 30 March 1989) ........................................................... 16
Secretary of State for the Home Department v.Rehman (2001) UKHL 47 (United Kingdom
House of Lords) ..................................................................................................................... 16
Smith v. California, 361 U.S. 147 (United States Supreme Court, 1959) .................................... 18
Speiser v. Randall, 357 U.S. 513 (United States Supreme Court, 1958) .......................................9
Tromsø and Stensås v. Norway, App no. 21980/93 (ECmHR, 9 July 1998) .................................9
vii
Western Union Telegraph Co. v. Lesesne, 182 F.2d 135 (4th Cir. 1950) .................................... 18
Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997) ............................................... 11, 19
REPORTS
ACmHPR, ‘Resolution on the Adoption of the Declaration of Principles of Freedom of
Expression in Africa’ (2002) ACHPR/Res 62(XXXII)02 Principle II ................................ 1, 17
ACmHPR, ‘Zimbabwe Lawyers for Human Rights & Institute for Human Rights and
Development in Africa v Zimbabwe’ (2009) AHRLR 268 Comm no 294/04. .................... 1, 17
IACHR, ‘Freedom of expression and the Internet’ (31 December 2013) OEA/Ser.L/V/II ............1
IACtHR, ‘Annual Report for the Inter-American Commission on Human Rights 1994’ (17
February 1995) OEA/ SerL/ V/V 212 Doc 9 .......................................................................... 16
UNGA, ‘Communications report of Special Procedures’ (30 November 2015) A/HRC/31/79,
case no CHN 7/2015 .............................................................................................................. 15
UNHRC, “CCPR General Comment No 25: Article 25 (Participation in Public Affairs and the
right to vote) The Right to Participate in Public Affairs, Voting Rights and the Right of Equal
Access to Public Service” (12 July 1996) UN Doc CCPR/C/21/ Rev 1/ Add 7 .........................3
ARTICLES AND BOOKS
Ambeyi Ligabo, Freimut Duve, Eduardo Bertoni ‘International Mechanisms for Promoting
Freedom of Expression’ UN, OSCE, OAS (2002)
<www.oas.org/en/iachr/expression/showarticle.asp?artID=87> accessed 1 December 2017 .....6
Amnesty International, ‘Oman: End crackdown on peaceful dissent’ (18 November 2016)
<www.refworld.org/docid/583844964.html> accessed 22 December 2017 ............................. 8
viii
Amnesty International ‘Urgent Action: Journalists’ Trial Postponed To 12 December’ (18
November 2016) <www.amnestyusa.org/sites/default/files/uaa20616_4.pdf> accessed 21
December 2017 .......................................................................................................................8
Anne Weber, ‘Manual on Hate Speech’ (COE, September 2009) .............................................. 16
Article 19, ‘Johannesburg Principles on National Security, Freedom of Expression and Access to
Information’ (1 October 1995) ............................................................................................... 16
Article 19, United Nations Human Rights Office of the High Commissioner, International
Covenant on Civil and Political Rights Adopted and opened for signature, ratification and
accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force
23 March 1976, in accordance with Article 49
<http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx> accessed 23 December 2017
.............................................................................................................................................. 18
COE, “Council Framework Decisio0n 2008/919/JHA’ (2008) http://eur-lex.europa.eu/legal-
content/en/txt/PDF/?uri=CELEX:32008F0919> accessed 16 December 2017 ........................ 16
EU study on the Legal analysis of a Single Market for the Information Society, New rules for a
new age, Liability of online intermediaries
<ec.europa.eu/information_society/newsroom/cf/document.cfm?doc_id=835> accessed 23
December 2017 ................................................................................................... 10, 11, 13, 14
Federal Communications Law Journal, Limiting Tort Liability for Online Third-party Content
Under Section 230 of the Communications Decency Act of 1996 (a common name for Title V
of the Telecommunications Act of 1996) a landmark piece of Internet legislation in the United
States, codified at 47 U.S.C. § 230
ix
<https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1245&context=fclj>
accessed 20 December 2017 .................................................................................................. 12
Human Rights Watch, ‘Oman: ‘Journalists Sentenced Over Articles Alleging Corruption’ (3
October 2016) <www.hrw.org/news/2016/10/03/oman-journalists-sentenced-over-articles-
alleging-corruption> accessed 22 December 2017 ...................................................................8
Human rights watch, ‘Uganda “Walk to Work” Group declared Illegal’ (4 April 2012) <
www.hrw.org/ news/2012/04/04/Uganda-walk-work-group-declared-illegal> accessed 26
December 2017 ..................................................................................................................... 15
I. J. LLOYD, Information technology law, Oxford, Oxford University Press, 2008 ................... 12
Iginio Gagliardone and others ‘Countering Online Hate Speech’ (UNESCO, 2015) .................. 16
Lydia Polgreen ‘Zimbabwe Convicted 6 Who Viewed Revolt News’ New York Times (19 march
2012) < www.nytimes.com/2012/03/20/world/africa/6-convicted-for-watching-arab-spring-
news-in-zimbabwe.html> accessed 26 December 2017 .......................................................... 15
Mapping Digital Media: The Media and Liability for Content on the Internet,
<https://www.opensocietyfoundations.org/sites/default/files/mapping-digital-media-liability-
content-internet-20110926.pdf> accessed 23 December 2017 ................................................ 23
Nicola Wenzel, ‘Opinion and Expression, Freedom of, International Protection’ Max Planck
Encyclopedia Of Public International Law (2009) ...................................................................1
Peter Malanczuk, ‘Information and Communication, Freedom of’ Max Planck Encyclopedia Of
Public International Law (April 2011) .....................................................................................1
President of Court of 's Gravenhage 12 March 1996, Informatierecht/AMI, 1996/5 ............. 12, 18
Toby Mendel, ‘Restricting Freedom of Expression: Standards and Principles Background Paper
for Meetings Hosted by the UN Special Rapporteur on Freedom of Opinion and Expression’
x
Centre for Law and Democracy (March 2010) <www.law-democracy.org/wp-
content/uploads/2010/07/10.03.Paper-on-Restrictions-on-FOE.pdf> accessed December 18
2017 ........................................................................................................................................6
UNGA ‘The promotion, protection and enjoyment of human rights on the Internet’ (29 June
2012) UN Doc. A/HRC/20/L.13 ..............................................................................................1
UNHCHR ‘Expert Seminar on the Links Between Articles 19 and 20 of the ICCPR: Freedom of
Expression and Advocacy of Religious Hatred that Constitutes Incitement to Discrimination,
Hostility or Violence’ (2-3 October 2008) Conference Room Paper #6; ‘ConCourt says
criminal defamation law is dead and invalid, cannot be used to arrest journalists’ The New
Zimbabwe (2 March 2016) <www.newzimbabwe.com/news-27501-
Criminal+defamation+law+dead+ConCourt/news.aspx>accessed 27 December 2017..............6
UNHRC ‘General Comment No 34, Article 19, Freedoms of Opinion and Expression’ (12
September 2011) UN Doc CCPR/C/GC/34 ........................................................................ 1, 14
OTHER LEGISLATIONS
Section 230 of the Communications Decency Act of 1996 (a common name for Title V of the
Telecommunications Act of 1996) a landmark piece of Internet legislation in the United States,
codified at 47 U.S.C. § 230 ........................................................................................ 21, 22, 23
Telecommunications Act of 1996) a landmark piece of Internet legislation in the United
States, codified at 47 U.S.C. § 230. .................................................................................. 10, 11
The Electronic Commerce Directive 2000/31/EC a European Union Directive of the European
Parliament and of the Council from 8 June 2000 .................................................. 10, 11, 12, 13
xi
STATEMENT OF RELEVANT FACTS
I. HISTORY OF TURTONIA
A. Turtonia is a small democratic country with an ethnically homogeneous population 1. In
the past three years, Turtonia has seen a significant influx of immigrants from the
neighboring country of Aquaria.2 Since 2015, a religious extremist terror group called
True Religion has emerged in Aquaria with its leader Prinsov Parkta, an Aquarian, killing
anyone who is against their religion. 3 Therefore, True Religion is regarded as a major
threat by Aquaria, Turtonia and many other countries including members of the UN
Security Council. 4 In some measure due to fears of True Religion, a social and political
furor has arisen in Turtonia, one that claims that the immigrants have disrupted the
economy and diluted the culture.5 Beginning in late 2015, a particularly vocal group of
Turtonian nationalists, calling themselves Turton Power, began publicly denouncing the
Turtonian Minister of Immigration, Wani Kola for allowing Aquarians to enter the
country.6 They’ve called for her resignation and have occasionally protested outside her
office.7
1
Compromis, ¶ 1.
2
Compromis, ¶ 2.
3
Compromis, ¶ 3.
4
Compromis, ¶ 3.
5
Compromis, ¶ 4.
6
Compromis, ¶ 4.
7
Compromis, ¶ 4.
xii
II. SCOOPS, XYZ NEWS AND PEAPS
B. Scoops is the most popular social media platform. 8 Through the app, users build a profile
that consists of (1) a screen name, (2) topics of interest, and (3) friends. 9 Users can
upload photos and videos with up to 200 words of text and tag the post with up to two
topics of interest.10 When they hit “send”, the content will appear on the screens of the
devices of friends of the poster and up to 20 other users who have listed a matching topic
of interest.11 These 20 other users are selected by an algorithm, and the viewer of the post
can dismiss it or forward it along to their friends and to another 20 people. 12 Scoops also
uses human review to assist the algorithm in reaching the right users who may be
interested in the content.13
C. Each user has a publicly-visible “influencer score” at the top of his or her profile based
on how many people have seen content from him and her. 14 Scoops CEO said, “The
influencer score is a fun way to see how many people you can influence. […] people are
sharing news, an opinion, or just the latest gossip, we want people to hear it first on
Scoops”.15
8
Compromis, ¶ 5.
9
Compromis, ¶ 5.
10
Compromis, ¶ 5.
11
Compromis, ¶ 5.
12
Compromis, ¶ 5.
13
Compromis, ¶ 5.
14
Compromis, ¶ 5.
15
Compromis, ¶ 5.
xiii
D. XYZ News is a popular TV news network in Turtonia and is well-respected for being a
reliable and objective news source.16 XYZ maintains a Scoops account called “XYZ
news”.17 On the 1st of May 2015, Niam Peaps, a Turton Power member created a Scoops
account with the screen name “XYZ News12.” 18 Peaps has no affiliation with XYZ
News.19
III. PEAPS’ POST THROUGH HIS SCOOPS ACCOUNT
E. On the 2nd of May 2015, Peaps used the “XYZ News12” account to post an image that
appeared to show Kola standing naked in a hotel room, facing another individual, Parkta,
the leader of True Religion.20 The image was accompanied with a post that informed the
public that the Turtonian Minister of Immigration was distributing visas to Parkta’s
followers.21
F. Peaps selected “XYZ News” as the Topic of Interest for the post.22 The post went viral on
Scoops, reaching more than 10,000 on Scoops within the first hour of appearing, and
spreading to other websites and social media. 23
G. By 5:00 pm, the same day, XYZ Media’s corporate department of public affairs released
a statement declaring that XYZ Media had no role in the post and no connection to the
16
Compromis, ¶ 6.
17
Compromis, ¶ 6.
18
Compromis, ¶ 7.
19
Compromis, ¶ 7.
20
Compromis, ¶ 8.
21
Compromis, ¶ 8.
22
Compromis, ¶ 8.
23
Compromis, ¶ 8.
xiv
XYZ News12 account. Kola’s office has also released a statement calling the post “a
horrific lie with no basis in fact”.24 Following the post, Kola was severely harassed and
received death threats.25
H. At 7:00 pm, Kola’s staff reported the post to Scoops through Scoops’ online reporting
form as a violation of Scoops’ terms of service. 26 When users of Scoops sign up to the
service they agree to Scoops’ Terms of Service that specify that they do not allow
harmful and malicious content such as spam, non-consensual sharing of intimate images,
hate speech or child exploitative imagery. 27 The Scoops report form gave four options
including “a nude picture of me shared without my consent” as the reason to request
removal. 28 Kola’s staff selected “a nude picture of me shared without my consent” as the
reason to request removal. 29 They received an electronic message that read “Thanks for
letting us know. Before we can remove this image, we need you to pleaser enter your
name and check the box below to certify that you are the person depicted in this
image”.30 Kola’s staff did not complete the form. 31
24
Compromis, ¶ 9.
25
Compromis, ¶ 9.
26
Compromis, ¶ 9.
27
Compromis, ¶ 9.
28
Compromis, ¶ 9.
29
Compromis, ¶ 9.
30
Compromis, ¶ 9.
31
Compromis, ¶ 9.
xv
I. On the 3rd of May 2015, at 11:00 a.m., Kola’s legal counsel submitted a letter to Scoops,
threatening a civil action for defamation and violation of privacy. 32
J. On the 5th of May 2015, at 1:00 p.m., 50 hours after the submission of the complaint,
Scoops removed the post and all shares of the post.33
K. On the 10th of May 2015, Kola resigned from office, 34 after receiving harassment, death
threats and protestors’ demonstrations demanding her resignation though most of the
signs were unrelated to the post.35
IV. ONLINE DIGNITY PROTECTION ACT OF 2015
L. In 2015, the Online Dignity Protection Act (‘ODPA’) was passed in response to a
growing problem of Non Consensual Sharing of Intimate Images. 36 The ODPA makes it a
crime to knowingly distribute an image of another person who is identifiable from the
image itself or information displayed in connection with the image and whose intimate
parts are exposed with conscious disregard and unjustified risk that the depicted person
has not consented to such disclosure. 37 Such act is punishable by a term of imprisonment
not to exceed 5 years, a fine of up to 300,000 USD. However, there are two possible
exceptions: (1) the voluntary exposure in public or commercial settings; or (2) the
disclosure is made in the public interest, including reporting of unlawful conduct. 38
32
Compromis, ¶ 9.
33
Compromis, ¶ 9.
34
Compromis, ¶ 9.
35
Compromis, ¶ ¶ 9.2, 9.4.
36
Compromis, ¶ 10.
37
Compromis, ¶ 10.
38
Compromis, ¶ 10.
xvi
V. INFORMATION ACT OF 2006
M. Ahead of the 2005 Turtonian General Elections, the Turtonian Government passed the
Information Act (‘IA’) in order to preserve the integrity of the democratic process and
avoid the hijacking of elections and to safeguard the peace. 39 The distribution of false
information, knowingly or recklessly against a person leading to public hatred, depriving
of public confidence or injuring the business or occupation is punishable by a fine up to
200,000 USD.40 The communication of false information with the ‘intent to incite civil
unrest, hatred or damage national security’ is punishable by a term of imprisonment not
to exceed a year and a fine up to 300,000 USD.41 The online service provider (‘OSP’) is
provided with immunity from liability under certain conditions. 42
VI. PROSECUTION AND COURT ORDER
N. Peaps was convicted under the ODPA for distributing an image of Kola and he was
sentenced to two years of imprisonment with no fine. 43 The court decided that Peaps
wasn’t entitled to the protection under the section 3(b) of the ODPA. 44 As well as he was
convicted under the Section 1(b) of the IA and sentenced to a fine of 100,000 USD and
that for inciting violence or being reckless as to whether violence was incited through
false information.45 Peaps maintained that he was under the impression he had heard that
39
Compromis, ¶ 11.
40
Compromis, ¶ 11.
41
Compromis, ¶ 11.
42
Compromis, ¶ 11.
43
Compromis, ¶ 12.
44
Compromis, ¶ 12.
45
Compromis, ¶ 12.
xvii
XYZ was about to break the news about the unlawful conduct of the minister. 46 He chose
to post the image of Kola and Parkta to “illustrate the relationship”. 47
O. Scoops was prosecuted and convicted for violating the ODPA by distributing a nude
image of Kola and sentenced to a fine equivalent to 200,000 USD.48 Scoops was also
convicted under Section 1(b) of IA and sentenced to a fine equivalent of 100,000 USD.
Under ODPA, The court found that Scoops received notice of the image at 7:00 p.m., on
the 2nd of May, when Kola's staff reported the image as “a nude image of me shared
without my consent.”49 After that report, Scoops knew or consciously disregarded a
substantial and unjustified risk that Kola had not consented to the disclosure. 50 Further,
under IA the court found that Scoops was on notice of the Peaps post from 11:00 a.m., on
the 3rd of May, when Kola's legal counsel submitted a defamation claim. 51 Scoops failed
to remove the post within a reasonable time. 52
P. The Supreme Court of Turtonia declined to consider Peaps’ and Scoops’ appeals. 53 Both
Peaps and Scoops seek now to challenge these verdicts in the Universal Court of Free
Expression. 54
46
Compromis, ¶ 12.
47
Compromis, ¶ 12.
48
Compromis, ¶ 13.
49
Compromis, ¶ 13.
50
Compromis, ¶ 13.
51
Compromis, ¶ 13.
52
Compromis, ¶ 13.
53
Compromis, ¶ 14.
54
Compromis, ¶ 14.
xviii
STATEMENT OF JURISDICTION
The Universal Court of Human Rights has jurisdiction to hear cases that relate to
Freedom of Expression as set out in Article 19 of the Universal Declaration of Human Rights
(‘UDHR’), and the citizens of Turtonia enjoy the rights enshrined in the UDHR.55 The parties
have submitted their differences under Article 19 of the International Covenant on Civil and
Political Rights (‘ICCPR’) to the Universal Court of Free Expression. 56 No domestic or
international law restricts Applicants’ standing to bring these challenges.57 The Turtonian courts
have decided Applicants claims in favor of the Government of Turtonia, 58 and all domestic
remedies within the Turtonian legal system have been exhausted.59This Court has jurisdiction
over Peaps and Scoops, as Applicants, and the Government of Turtonia, as Respondent.60
Peaps and Scoops request this Honourable Court to issue a judgment in accordance with
relevant international law, including the UDHR, the ICCPR, conventions, jurisprudence of
relevant courts, and principles of international law.
55
Price Media Law Moot Court Competition Rules, 2017-2018, § 5.4.
56
Compromis,¶ 14.
57
58
Compromis, ¶ ¶ 12, 13.
59
Compromis, ¶ 14.
60
xix
QUESTIONS PRESENTED
I. Does Turtonia’s prosecution of Peaps under ODPA violate international principles
including article 19 of the ICCPR?
II. Does Turtonia’s prosecution of Scoops under the ODPA violate international principles
III. Does Turtonia’s prosecution of Peaps under IA violate international principles including
article 19 of the ICCPR?
IV. Does Turtonia’s prosecution of Scoops under the IA violate international principles
xx
SUMMARY OF ARGUMENTS
I. TURTONIA’S PROSECUTION OF PEAPS UNDER ODPA VIOLATES
INTERNATIONAL PRINCIPLES
A. Freedom of expression is a fundamental and universal human right. Restriction on this
freedom must be prescribed by law, pursue a legitimate aim, and be necessary in a
democratic society. Further, the restriction must be the least restrictive means possible and
must carry a punishment proportionate to the protected interest. Attempts to restrict political
speech and matters of public interest elicit an even stricter analysis, and the limits of
permissible criticism are wider regarding government officials than in relation to private
citizens.
B. The ODPA poses a real threat to freedom of expression. The impact of restrictions must be
proportionate in the sense that the harm to freedom of expression must not outweigh the
benefits in terms of the interest protected. A restriction which provided limited protection to
reputation but which seriously undermined freedom of expression would not pass muster.
C. A democratic society depends on the free flow of information and ideas and it is only when
the overall public interest is served by limiting that flow that such a limitation can be
justified. This implies that the benefits of any restriction must outweigh the costs for it to be
justified. Further, the threat of imprisonment, paired with uncertainty about which speech is
or is not legal, will lead to a chilling effect in which citizens avoid controversial topics for
fear of arrest. As applied to Peaps, Turtonia was required to use the least-restrictive means
towards its aim of public order rather than imposing a two-year jail sentence on Peaps for a
political opinion he expressed in the post that was merely a denunciation of alleged unlawful
behaviour and unfitness of a government official for the office as well as it was an expression
xxi
of fear for national security. The ODPA is not necessary in a democratic society to achieve a
legitimate aim. Both on its face and as applied to Peaps, the ODPA is an impermissible
restriction on Turtonians’ freedom of expression. Therefore, the disproportionate and
unforeseeable sanction is contrary to principles of international law and will lead to a chilling
effect for citizens wishing to exercise their rights. It is an impermissible restriction under
international law.
II. TURTONIA’S PROSECUTION OF SCOOPS UNDER THE ODPA VIOLATES THE
INTERNATIONAL PRINCIPLE WITHIN ARTICLE 19 OF THE ICCPR
D. According to the ODPA, an individual, organization or other publisher may not knowingly
distribute a nude image of another person when the actor knows or consciously disregards a
substantial and unjustified risk that the image was non-consensually shared. Thus, in order to
be liable the OSP must first, be aware of the illegal content prior to distribution; meaning, the
OSP should ‘knowingly distribute’ the information.
E. While according to the facts, nothing really points out that Scoops was aware of the content
before publication; Scoops is the most popular social media platform where users build a
profile and can then upload photos and videos and the post will appear on the screens of their
friends only after they hit ‘send’.
F. Also, after signing up to the service, users are obliged to agree to Scoops’ Terms of Service
that specify that they do not allow harmful content such as non-consensual sharing of
intimate images. So it would be unimaginable for Scoops to violate its own Terms of service,
set by them in order to protect their interest.
xxii
G. Hence, Scoops has an obligation to remove illegal activities but cannot do so with a simple
notice, the report form set by the provider should be followed to the very end or else Scoops
will be violating the user’s right to speech.
III. TURTONIA’S PROSECUTION OF PEAPS UNDER THE IA VIOLATES HIS
RIGHTS TO FREEDOM OF EXPRESSION
H. IA fails to define key terms resulting in a vague law that can be arbitrarily interpreted to suit
Turtonia’s needs. The terms ‘intent to incite civil unrest, hatred, damage the national
security’ are not defined within the IA, which allow the government to arbitrarily define what
constitutes an offence on a case-by-case basis. The IA is imprecise because it fails to require
a necessary level of violence. Peaceful protests are legal despite some actors turning violent.
This inherent ambiguity does not help to calm social unrest.
I. When a government invokes a freedom of expression restriction, it must demonstrate the
expression is intended to incite imminent violence, the expression is likely to incite violence.
Peaps’ post contained information that was intended to denounce the unfitness of minister
Kola for the position of Minister of Immigration because of her potentially corrupted and
unlawful behavior. Peaps’ post didn’t convey any intent to incite violence; it was mainly
meant to inform.
IV. TURTONIA’S PROSECUTION OF SCOOPS UNDER THE IA VIOLATES
ARTICLE 19 OF THE ICCPR
J. According to the Inter-American Court of Human Rights, “Freedom of expression is a
cornerstone upon which the very existence of a democratic society rests”. In addition to that,
article 19 of the ICCPR states that “everyone shall have the right to freedom of expression;
xxiii
this right shall include freedom to receive and impart information and ideas of all kinds,
regardless of frontiers, […], or through any other media of his choice”.
K. Despite their right to impart information and ideas of all kinds, online intermediaries are
gradually exposed to lawsuits caused by content provided by their users. Hence, the need to
detach the provider’s liability from the user is becoming crucial. Many countries such as the
US and the European nations have introduced a special liability regime in order to exempt
intermediaries from their users’ liability under certain conditions.
L. Accordingly, Scoops cannot be held liable as an intermediary as they have no actual
knowledge of the illegal activity prior to distribution. In fact, they do not have the ability to
edit or monitor a post before dissemination. This is why, as a result of being a blinded party,
it is unreasonable to consider them as an associated publisher rather than simply a distributor.
Therefore, Scoops could not knowingly spread false information when they have no access to
the post prior to publication to begin with.
M. Realizing how the authors alone are liable in respect of such information, online service
providers have no obligation to neither observe transmitted data nor examine whether the
activity is in the legal range. Consequently, Turtonia’s prosecution of Scoops cannot stand
when Scoops have indeed taken the necessary measures to stop the illegal activity as soon as
they became aware of it, regardless of the time it took for that to be fully achieved.
xxiv
ARGUMENTS
I- TURTONIA’S PROSECUTION OF PEAPS UNDER ODPA VIOLATES
INTERNATIONAL PRINCIPLES INCLUDING ARTICLE 19 OF THE ICCPR
A- Denying Peaps the protection under section 3 (b) of the ODPA constitutes a violation of his
right to freedom of expression
1- The Fundamental Nature of Freedom of Expression
1. Freedom of expression is a fundamental and universal right 61 that applies to speech
communicated on the Internet as well as through traditional means. 62 The overriding
importance of freedom of expression including the right to information has been widely
recognized as an essential underpinning of democracy and means of safeguarding other
human rights.
2. At its very first session in 1946, the United Nations General Assembly (UNGA) declared:
‘Freedom of expression is a fundamental human right and … the touchstone of all the
freedoms to which the United Nations is consecrated’. 63
61
Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR) art 19;
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March
1976) 999 UNTS 171 (ICCPR) art 19; European Convention on Human Rights (adopted 4 November 1950, entered
into force 3 September 1953) 213 UNTS 1932 (ECHR) art 10; American Convention on Human Rights (adopted 22
November 1969, entered into force 18 July 1978) (ACHR) art 13; African Charter on Human and Peoples’ Rights
(adopted 27 June 1981, entered into force 21 October 1986) 21 ILM 58 (ACHPR) art 9; See also ACmHPR
‘Resolution on the Adoption of the Declaration of Principles of Freedom of Expression in Africa’ (2002)
ACHPR/Res 62(XXXII)02 Principle II; ACmHPR ‘Zimbabwe Lawyers for Human Rights & Institute for Human
Rights and Development in Africa v Zimbabwe’ (2009) AHRLR 268 Comm no 294/04.
62
IACHR ‘Freedom of expression and the Internet’ (31 December 2013) OEA/Ser.L/V/II [148]. See also ICCPR art
19(2); ECHR art 10(1); ACHR art 13; ACHPR art 9; UNGA ‘The promotion, protection and enjoyment of human
rights on the Internet’ (29 June 2012) UN Doc. A/HRC/20/L.13; UNHRC ‘General Comment No 34, Article 19,
Freedoms of Opinion and Expression’ (12 September 2011) UN Doc CCPR/C/GC/34 [12]; Nicola Wenzel, ‘Opinion
and Expression, Freedom of, International Protection’ Max Planck Encyclopedia Of Public International Law
(2009) [14]-[15]; Peter Malanczuk, ‘Information and Communication, Freedom of’ Max Planck Encyclopedia Of
Public International Law (April 2011) [97]; Fatullayev v Azerbaijan App no 40984/07 (ECtHR, 22 April 2010)
[95].
63
Resolution 59 (1), 14 December 1946.
1
3. The African Commission on Human and Peoples’ Rights (ACmHPR) has noted: ‘This article
reflects the fact that freedom of expression is a basic human right, vital to an individual’s
personal development, his political consciousness, and participation in the conduct of public
affairs of his country’.64
4. The European Court of human rights (ECtHR) has recognized the key role of freedom of
expression ‘Freedom of expression constitutes one of the essential foundations of [a
democratic] society, one of the basic conditions for its progress and for the development of
every man … it is applicable not only to “information” or “ideas” that are favorably received
… but also to those which offend, shock or disturb the State or any other sector of
population. Such are the demands of pluralism, tolerance, and broadmindedness without
which there is no “democratic society”’.65
5. The Inter-American Court of Human Rights (IACtHR) has stated: ‘Freedom of expression is
a cornerstone upon which the very existence of a democratic society rests’. 66 It has also
recognized that the right to freedom of expression has two dimensions: an individual
dimension and a social dimension. Regarding the latter, this Court has ruled: ‘In its social
dimension, freedom of expression is a means for the interchange of ideas and information
among human beings and for mass communication. It includes the right of each person to
seek to communicate his own views to others, as well as the right to receive opinions and
news from others. For the average citizen it is just as important to know the opinions of
64
Media Rights Agenda and Others v. Nigeria, Comm Nos 105/93, 130/94, 128/94 and 152/96 (ACmHPR,
1998)[52].
65
Handyside v United Kingdom, App n 5495/72 (ECtHR, 7 December 1976), [49].
66
Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion
OC-5/85 Series A, No. 5 (IACtHR, 13 November 1985) [70].
2
others or to have access to information generally as is the very right to impart his own
opinions’.67
2- Peaps’ post constitutes a highly-protected political speech
6. ‘Political speech’ or ‘matter of public interest’ could be restricted with little latitude. 68 Free
political discourse between citizens, candidates, and elected representatives is essential, as is
journalist’s ability to comment on public issues without restraint to inform public opinion. 69
It has been widely recognized that public officials must tolerate a greater degree of criticism
than ordinary citizens.
7. In its very first defamation case, the European Court of Human Rights emphasized: ‘The
limits of acceptable criticism are … wider as regards a politician as such than as regards a
private individual. Unlike the latter, the former inevitably and knowingly lays himself open
to close scrutiny of his every word and deed by both journalists and the public at large, and
must consequently display a greater degree of tolerance’. 70
8. There are a number of reasons for this higher standard of tolerance, particularly in relation to
public officials. The most important is that democracy depends on the possibility of open
public debate about matters of public interest. Without this, democracy is a formality rather
than a reality.
67
Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, note 16. (n 689)
[32].
68
ECHR art 10; see also Sürek v. Turkey App no 26682/95 (ECtHR, 8 July 1999).
69
UNHRC “CCPR General Comment No 25: Article 25 (Participation in Public Affairs and the right to vote) The
Right to Participate in Public Affairs, Voting Rights and the Right of Equal Access to Public Service” (12 July
1996) UN Doc CCPR/C/21/ Rev 1/ Add 7 [26].
70
See Lingens v. Austria, App n 9815/82, 8 EHRR 407 (ECtHR, 8 July 1986) [42].
3
9. It is viewed as a fact that the impugned post in the present case relates to a public official.
Inasmuch as Wani Kola was the Turtonian Minister of Immigration. 71 She was by definition
a public official at the time the post was published.
10. It is also taken as given that the post related to a matter of a greatest public importance,
namely the fitness for office of a public official. Indeed, inasmuch as the allegations centered
on issues of corruption and illegal behavior on the part of a public official, 72 the post is a
political speech of the very highest order. Such speech epitomizes the very most important
reasons for guaranteeing freedom of expression.
11. Mr. Peaps as a Turton Power member 73 - a particularly vocal group of nationalists that began
publicly denouncing the Turtonian Minister of Immigration and called for her resignation 74 -
is strongly concerned with the public issues. In his opinion and in the opinion of his group,
minister Kola wasn’t qualified for her post. He was under the impression that XYZ was about
to break the story of alleged unlawful behavior of the minister 75 and he considered it being
his duty, as a nationalist, to participate in the conduct of public affairs of his country and to
inform the public of an issue of such great importance. The post was meant to inform.
12. Mr. Peaps’ behavior constitutes the exercise of freedom of expression in its social dimension
where he can feel free to interchange information with other citizens especially if it is to
criticize.
71
Compromis, ¶ 4.1.
72
Compromis, ¶ 8.1.
73
Compromis, ¶ 7.1.
74
Compromis, ¶ 4.1.
75
Compromis, ¶ 12.2.
4
13. The public interest factor in the present case is further enhanced by the context in which the
post was published, namely Turtonia has seen an influx of immigrants from neighboring
country of Aquaria76 which was accompanied by the rising fear of Turtonians that Aquarian
immigrants were stealing jobs and that True Religion might begin to root in Turtonia. 77
B- The ODPA unnecessary and overly-restrictive language threatens unfettered criminal
sanctions and creates a chilling effect that inhibits public debate and stifles dissent
1- Turtonia imparted an unforeseeable and disproportionately harsh punishment on Peaps
14. The right to freedom of expression is not absolute. Every system of international and
domestic rights recognizes carefully drawn and limited restrictions on freedom of expression
in order to take into account the values of individual dignity and democracy. Under
international human rights law, national laws which restrict freedom of expression must
comply with the provisions of Article 19 (3) of the ICCPR.
15. Restrictions must meet a strict three-part test.78 First, the restriction must be provided by
law. Second, the restriction must pursue one of the legitimate aims listed in Article 19 (3).
Third, the restriction must be necessary to secure that aim.
16. It is well-established that restrictions on freedom of expression meet the necessity part of the
test only if they are proportionate, in the sense that the goal they secure outweighs the harm
done to freedom of expression. ‘If there are various options to protect the legitimate interest,
76
Compromis, ¶ 2.1.
77
Compromis, ¶ 9.3.
78
This test has been affirmed by the UN Human Rights Committee. See, Mukong v. Cameroon, Comm no.
458/1991 (UNHRC, 1994), views adopted 21 July 1994, It has also been confirmed by this Court,
which has held that the test for restrictions under Article 13(2) of the ACHR is substantially similar to that
applied under the ICCPR and the ECHR. See Compulsory Membership in an Association Prescribed by Law
for the Practice of Journalism, note 16, [38-46]. For an elaboration of the test under the ECHR see
The Sunday Times v. United Kingdom , App no. 6538/74, 2 EHRR 245 (ECtHR, 26 April 1979) [45].
5
that which least restricts the right must be selected’. 79 In other words, a government cannot
‘use a sledge-hammer to crack a nut’.80
17. It is everywhere accepted that reputations should be protected by law and that certain types
of statements which undermine reputations should attract liability of some sort. However, the
civil law is not only the most appropriate remedy but also the only acceptable under
international guarantees of freedom of expression.
18. The United Nations, Organization for Security and Co-operation in Europe and others have
declared that freedom of expression offences should never be criminalized. 81 Relatedly, the
ECtHR overturned nearly all national courts’ sentences of imprisonment under defamation
law. 82 Defamation should not be a matter of criminal law because its use is disproportionate
when addressing the problem of unwarranted attacks on reputation. In Lohé Issa Konaté v
Burkina Faso, 83 a journalist who wrote two articles accusing a government official of
79
Toby Mendel, ‘Restricting Freedom of Expression: Standards and Principles Background Paper for Meetings
Hosted by the UN Special Rapporteur on Freedom of Opinion and Expression’ Centre for Law and Democracy
(March 2010) <www.law-democracy.org/wp-content/uploads/2010/07/10.03.Paper-on-Restrictions-on-FOE.pdf>
accessed December 18 2017.
80
Mendel [n 81].
81
Ambeyi Ligabo, Freimut Duve, Eduardo Bertoni ‘International Mechanisms for Promoting Freedom of
Expression’ UN, OSCE, OAS (2002) <www.oas.org/en/iachr/expression/showarticle.asp?artID=87> accessed 1
December 2017. See also UNHCHR ‘Expert Seminar on the Links Between Articles 19 and 20 of the ICCPR:
Freedom of Expression and Advocacy of Religious Hatred that Constitutes Incitement to Discrimination, Hostility
or Violence’ (2-3 October 2008) Conference Room Paper #6; ‘ConCourt says criminal defamation law is dead and
invalid, cannot be used to arrest journalists’ The New Zimbabwe (2 March 2016) <www.newzimbabwe.com/news-
27501-Criminal+defamation+law+dead+ConCourt/news.aspx>accessed 27 December 2017.
82
Barford v Denmark App no 11508/85 (ECtHR, 22 February 1989); Thorgeir Thorgeirson v Iceland App no
13778/88 (ECtHR, 25 June 1992); De Haes and Gijsels v Belgium App no 19983/92 (ECtHR, 24 February 1997);
Dalban v Romania App no 28114/95 (ECtHR, 28 September 1999); Nilsen and Johnsen v Norway App no 23118/93
(ECtHR, 25 November 1999); Colombani and Others v France App no 51279/99 (ECtHR, 25 June 2002); Castells v
Spain App no 11798/85 (ECtHR, 23 April 1992); Scharsach and News Verlagsgesellschaft v Austria App no
39394/98 (ECtHR, 13 November 2003).
83
Lohé Issa Konaté v The Republic of Burkina Faso Comm no 004/2013 (ACmHPR, 2014).
6
corruption was sentenced to one-year imprisonment and $12,000 in monetary penalties 84.
The ACtHPR held that Burkina Faso must amend its law to disallow criminal penalties for
defamation and reasoned that the punishment represented a disproportionate interference for
criticizing a public figure. 85 In Taranenko v Russia, Taranenko was one of approximately
forty protestors who forced her way into a government building, occupied the building, and
distributed anti-government leaflets through the windows. 86 While the ECtHR found that
Taranenko’s actions disturbed the public order, they unanimously held that her punishment
of one-year pre-trial detention and three-year suspended prison sentence was
disproportionate.87
19. In the case at hand, Mr. Peaps was harshly penalized with two years of imprisonment.
Turtonia not only threatens criminal sanctions but also its interference with Peaps’ freedom
of expression doesn’t meet the necessity part of the test because it is disproportionate to the
aims pursued and there are less-restrictive means to accomplish the goals of the ODPA such
as civil law which would be sufficiently enough to recover the harm caused to minister
Kola’s reputation.
2- The ODPA creates a chilling effect that inhibits public debate and stifles dissent
20. The use of criminal law in a defamation matter also exerts an unacceptable chilling effect on
freedom of expression. This is particularly so in relation to statements regarding public
officials or on matters of public interest, both of which are applicable in the present case. The
84
Lohé Issa Konaté v The Republic of Burkina Faso [n 15].
85
Lohé Issa Konaté v The Republic of Burkina Faso [n15].
86
Taranenko v Russia App no 19554/05 (ECtHR, 15 May 2014).
87
Taranenko v Russia (n 86).
7
‘chilling effect’ refers to the fact that such restrictions affect expression well beyond the
actual scope of the prohibition.
21. For example, in Oman, two journalists who alleged corruption in the Omani judiciary were
convicted of ‘undermining the prestige of the state’ for publishing material that would
‘disturb public order’.88 The UN Special Rapporteur condemned Oman’s actions as part of a
pattern of ‘silencing voices of dissent’. 89
22. In Lingens v. Austria, the ECtHR recognized that ‘In the context of political debate, such a
sentence would be likely to deter journalists from contributing to public discussion of issues
affecting the life of the community’. 90 In other words, criminal sanctions for defamation can
lead to the censorship of important expression. The present case is in fact a perfect example
of the risk criminal defamation laws pose to the free flow of information and ideas about
matters of public importance.
23. Courts around the world - both international and national - have recognized that it is a
breach of the right to freedom of expression to impose strict liability on defamation
defendants for publishing false statements. Even the best journalists make honest mistakes
and to leave them open to punishment for every false allegation would be to undermine their
88
‘Urgent Action: Journalists’ Trial Postponed To 12 December’ Amnesty International (18 November 2016)
<www.amnestyusa.org/sites/default/files/uaa20616_4.pdf> accessed 21 December 2016.
89
‘Oman: ‘Journalists Sentenced Over Articles Alleging Corruption’ Human Rights Watch (3 October 2016)
<www.hrw.org/news/2016/10/03/oman-journalists-sentenced-over-articles-alleging-corruption> accessed 22
December 2017; ‘Oman: End crackdown on peaceful dissent’ Amnesty International (18 November 2016)
<www.refworld.org/docid/583844964.html> accessed 22 December 2017.
90
Lingens v. Austria, App n 9815/82, 8 EHRR 407 (ECtHR, 8 July 1986) [44].
8
right to freedom of expression, the public’s right to know and the democratic interest in a
free flow of information in society. 91
24. In Taranenko v Russia, the ECtHR found that her punishment of one-year pre-trial detention
and three-year suspended prison sentence would deter future activists. 92 Similarly, in the case
at hand, the criminal sanction risks to have a chilling effect and to deter future nationalists,
though the use of civil law would have permitted to avoid the chilling effect especially that
Minister Kola is a public figure and the matter at hand is one of public interest.
II- TURTONIA’S PROSECUTION OF SCOOPS UNDER THE ODPA VIOLATES
A- The ODPA violates Scoops’ freedom to impart information by lacking precision
25. With the rise of the internet the rule of law has faced many challenges one of which is the
right to freedom of expression. From one hand, the internet provides new means of
expressions for individuals which empowers their right to speech. With the case Reno v.
American Civil Liberties Union, the U.S. Supreme Court declared Internet speech as equally
worthy of the First Amendment’s protection. 93 From another hand, restrictions needed to be
made due to the limitless flow of information calling for legal attempts to regulate both the
right to speech on Internet and the right to privacy.
26. This is why, the Turtonian government passed the ODPA law in response to a growing
problem of non consensual sharing of intimate images. As written, the ODPA forbids an
individual, organization or other publisher from knowingly distributing a revealing image of

91
Tromsø and Stensås v. Norway, App no. 21980/93 (ECmHR, 9 July 1998), Report of 9 July 1998,[41-80] ;
Speiser v. Randall, 357 U.S. 513 (United States Supreme Court, 1958); Rajagopal & Anor v. State of Tamil Nadu, 6
SCC 632 (Supreme Court of India, 1994), p. 650.
92
Taranenko v Russia App no 19554/05 (ECtHR, 15 May 2014).
93
Reno v. American Civil Liberties Union, 521 U.S. 844 (United States Supreme Court, 1997)
9
another person’s intimate parts without his/her consent, intentionally. 94 However, Scoops’
prosecution under this law contradicts their right to impart information guaranteed in article
19 of the ICCPR, since their conduct did not fall within the ODPA’s scope.
27. With that being said, despite all attempts to create a flawless platform, OSPs are still exposed
to the dissemination of illegal activities leading to defamation or copyright infringement
complaints.
28. Consequently, several countries such as the European nations and the U.S. hoped to detach
the liability of the OSPs from their users’ by putting into place a special liability regime that
strive to exempt them from such liability under certain conditions.
29. In fact, according to article 14 of the eCommerce 95 and the CDA, 96 OSPs generally have a
limited degree of knowledge about the data they transmit or store.97 Therefore, the data that
is being stored is usually selected and uploaded by a user of the service without the
interference of the service itself, regardless of the provider’s ability to delete the post. 98 In
such case in order to benefit from the exemption of this liability, online providers have to
prove that they were not aware of the facts or circumstances from which illegal activity or
information is apparent, and do not have actual knowledge of illegal activity or information.
94
Compromis, ¶ 10.2.
95
The Electronic Commerce Directive 2000/31/EC is a European Union Directive of the European Parliament and
of the Council from 8 June 2000.
96
Telecommunications Act of 1996) is a landmark piece of Internet legislation in the United States, codified at 47
U.S.C. § 230.
97
EU study on the Legal analysis of a Single Market for the Information Society, New rules for a new age, Liability
of online intermediaries (p. 8) <ec.europa.eu/information_society/newsroom/cf/document.cfm?doc_id=835>
accessed 23 December 2017.
98
Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1124 (9th Cir. 2003).
10
30. According to the case, Scoops is a media platform where users create their profiles from
which they can then upload photos and videos. 99 As mentioned, the users are the ones who
disseminate the content when hitting ‘send’ without any active interference of Scoops.100
31. Moreover, In Zeran v. America Online, Inc, the court ruled: ‘No provider or user of an
interactive computer service shall be treated as the publisher or speaker of any information
101
provided by another information content provider.’ Pursuant to that case, Scoops have
maintained a passive role in the distribution process should therefore benefit from the shield
of immunity offered by both article 14 102 and the CDA.103 In addition to that, in 1996, a
French court ruled that ‘an access provider is under no legal obligation to regulate the
information available on the network since the authors alone are liable in respect of such
information’.104
32. Hence, Scoops is under no obligation to monitor the information transmitted 105 nor have a
general obligation actively to seek facts or circumstances that would indicate illegal
activity, 106 when in fact the users alone should be responsible for the content they post. In
99
Compromis, ¶ 5.1.
100
Compromis, ¶ 5.1.
101
Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997).
102
The Electronic Commerce Directive 2000/31/EC is a European Union Directive of the European Parliament and
of the Council from 8 June 2000.
103
Telecommunications Act of 1996) is a landmark piece of Internet legislation in the United States, codified at 47
U.S.C. § 230.
104
Paris Regional Court, Réf. 53061/96 (12 June 1996).
105
Parker v. Google, Inc., 422 F. Supp. 2d 492 (E.D.Pa. 2006), aff'd 242 Fed. Appx. 833 (3rd Cir. 2007).
106
EU study on the Legal analysis of a Single Market for the Information Society, New rules for a new age,
Liability of online intermediaries (p. 9), Section 4 article 15 of the Electronic Commerce Directive 2000/31/EC is a
11
addition to that ‘it was impossible for the OSP to control the information because the transfer
between the actual author and the public takes place electronically and at high speed’. 107
33. Seeing how the OSPs do no more than ‘provide the opportunity to public disclosure, and that
in principle, they are unable to influence, or even have knowledge of things disseminated by
those who have access to the Internet through them’, 108 Scoops’ prosecution under the ODPA
finds no grounds and violates their right to impart information given by article 19 of the
ICCPR.
B- The ODPA challenges the users’ right to speech
34. It is known that OSPs are an attractive target for legal action, as they are visible, well known,
and their financial strength is likely to be greater than that of their customers or users; 109
which is why they are unstoppably facing lawsuits caused by their user’s content. In their
very aim to resist defamation claims arising from the postings of third parties, OSPs have
created several lines of defense including their general terms of service which users have to
accept.110
35. According to the facts, Scoops have set their Terms of service, agreed by all users when
signing up, in which they do not allow harmful and malicious content such as non-consensual
European Union Directive of the European Parliament and of the Council from 8 June 2000
<ec.europa.eu/information_society/newsroom/cf/document.cfm?doc_id=835> accessed 23 December 2017.
107
Ava v. Infonie and others, District Court of Puteaux, 28 September 1999. 
108
President of Court of 's Gravenhage 12 March 1996, Informatierecht/AMI, 1996/5, p. 96-97.
109
I. J. LLOYD, Information technology law, Oxford, Oxford University Press, 2008, p. 572.
110
Federal Communications Law Journal, Limiting Tort Liability for Online Third-party Content Under Section 230
of the Communications Decency Act of 1996 (a common name for Title V of the Telecommunications Act of 1996)
is a landmark piece of Internet legislation in the United States, codified at 47 U.S.C. § 230 (p. 649)
<https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1245&context=fclj> accessed 20 December
2017.
12
sharing of intimate images. 111 And seeing how Scoops are against such contents, they had put
into place a report form in order to stop the spreading of non-consensual sharing of intimate
images. However, Scoops cannot take action and takedown the image unless the user himself
followed the procedure to the very end or in case Scoops was noticed of the illegal
information. 112
36. After Kola’s staff requested removal of the post, Scoops responded with an electronic
message that read, ‘Thanks for letting us know, before we can remove this image, we need
you to certify that you are the person depicted in this image’. 113 Thus, as an OSP, Scoops
cannot remove the post before accreditation or else they would be jeopardizing the users’
right to speech.
37. Seeing the massive free flow of information, Scoops has no obligation to seek further
evidences that would indicate illegal activity;114 meaning the notice made by Kola’s staff was
not enough in this case. The German courts went beyond that by differentiating between
actual human knowledge as opposed to computer knowledge. 115 In our case the electronic
message does not fall into the level of knowledge required in the ODPA to begin with.
111
Compromis, ¶ 9.2.
112
Compromis, ¶ 11.2.3 (c) ‘Service providers must expeditiously remove, or block access to, such information
once they are aware of their unlawful nature’.
113
Compromis, ¶ 9.2.
114
Liability of online intermediaries (p. 9), Section 4 article 15 of the Electronic Commerce Directive 2000/31/EC is a
European Union Directive of the European Parliament and of the Council from 8 June 2000
115
of online intermediaries (p. 18), (Study on liability of Internet intermediaries p.36)
13
38. But, if we were to abandon such a reasoning, regardless of its level of knowledge, Scoops
cannot risk the right to speech of its users unless it was absolute to the provider that the
content was certainly ‘defamatory’.
39. According to the notice and takedown procedure followed in both the U.S. and Japan, the
service provider must convey the takedown claim to its user in order to balance the interests
of both parties by insuring the user’s speech right and by giving him an opportunity to reply
before removing the material. 116
40. For instance, In Religious Technology Center v. Netcom On-Line Com case, the court ruled in
favor of ‘Netcom which plays a vital role in the speech of their users. Requiring them to
prescreen postings for possible infringement would chill their users’ speech.’ 117 Similarly,
Scoops cannot be held liable for a defamatory content they had no actual knowledge of, nor
were they able to remove it without a proper notice and takedown procedure or else they
would violate their user’s right to speech.
III- TURTONIA’S PROSECUTION OF PEAPS UNDER IA VIOLATES
INTERNATIONAL PRINCIPLES INCLUDING ARTICLE 19 OF THE ICCPR
A- IA fails to meet the standards of clarity and precision that enable citizens to foresee the
consequences of their conduct
41. For a restriction to be prescribed by law, a statute must be sufficiently precise as to the rule’s
constraints, limitations, and penalties. 118 This foreseeability allows citizens to know when
116
of online intermediaries (p. 41) <ec.europa.eu/information_society/newsroom/cf/document.cfm?doc_id=835>
117
Religious Technology Center v. Netcom On-Line Com., 923 F. Supp. 1231 (N.D. Cal. 1995).
118
Leonardus Johannes Maria de Groot v The Netherlands Comm no 578/1994 UN Doc CCPR/C/54/D/578/1994
(UNHRC, 1995); General Comment No 34 (n 73) [25].
14
their actions will constitute an offence and enables them ‘to regulate their conduct’. 119
Further, vague and over-broad laws are often found to be impermissible since they provide
officials with discretionary power to make arbitrary decisions.120
42. IA fails to define key terms resulting in a vague law that can be arbitrarily interpreted to suit
Turtonia’s needs. Section 1 (b) of the IA reads ‘intent to incite civil unrest, hatred, or
damage the national security’. Such an expansive definition does not help to calm social
unrest. Since ‘civil unrest’, ‘hatred’, and ‘national unity’ are undefined, Turtonia – even to
merely quash criticism – may arbitrarily decide what constitutes an offence on a case-by-case
basis. Section 1(b) of the IA is imprecise because it fails to require a necessary level of
violence. Peaceful protests are legal despite some actors turning violent. 121 The law is vague,
similar to the ‘unlawful society’ pretext that allowed Uganda to arrest citizens walking to
work to protest rising fuel prices;122 or the ‘intent to incite hostility toward government’ law
that Zimbabwe used to punish activists gathering to watch Arab Spring uprising videos. 123
B- Peaps conveyed no intention to incite violence, nor was his post likely to incite violence
43. When a government invokes a freedom of expression restriction, it must demonstrate the
expression is intended to incite imminent violence, the expression is likely to incite violence,
and a direct connection exists between the expression and likelihood or occurrence of
119
The Sunday Times v United Kingdom App no 6538/74 (ECtHR, 26 April 1979) [49].
120
UNGA ‘Communications report of Special Procedures’ (30 November 2015) A/HRC/31/79, case no CHN
7/2015; ‘Limitations’ (Article 19) <www.article19.org/pages/en/limitations.html> accessed 17 December 2017.
121
Compromis, ¶ 9.5.
122
‘Uganda “Walk to Work” Group declared Illegal’ Human rights watch (4 April 2012) < www.hrw.org/
news/2012/04/04/Uganda-walk-work-group-declared-illegal> accessed 26 December 2017
123
Lydia Polgreen ‘Zimbabwe Convicted 6 Who Viewed Revolt News’ New York Times (19 march 2012) <
www.nytimes.com/2012/03/20/world/africa/6-convicted-for-watching-arab-spring-news-in-zimbabwe.html>
15
violence. 124 The Council of Europe125 and IACtHR126 also recognize intent and likeliness to
incite violence must be proven.
44. In Brandenburg v. Ohio, incitement is defined as a speech that advocates lawless action and
is directed toward a specific person or group.127 In Hess v Indiana, such speech must be
intended or likely to produce imminent disorder.128 Additionally, speech is not incitement
unless it is ‘gratuitously offensive’. 129 Courts consider whether the speech was a vehement on
a religion or religious beliefs, and whether the speech was a call to hostility, discrimination,
or violence.130 ‘The expression should be intrinsically dangerous … [and] inseparably locked
up with the action … the equivalent of a “spark in a powder keg”’.131
45. In the case at hand, the post contained information that was intended to denounce the
unfitness of minister Kola for the position of Minister of Immigration because of her
potentially corrupted and unlawful behavior. Mr. Peaps strongly believed that a relationship
124
Article 19, ‘Johannesburg Principles on National Security, Freedom of Expression and Access to Information’ (1
October 1995) [1.1- 6]. See Karatos v. Turkey App no 23168/94 (ECtHR, 8 July 1999) [53]; See Athukoral v. AG 5
May 1997, SD nos 1-15/97 (Supreme Court of Sri Lnka); Secretary of State for the Home Department v.Rehman
(2001) UKHL 47 (United Kingdom House of Lords).
125
Council of Europe Convention on the Prevention of Terrorism (entered into force 1 June 3007) ETS no 196 art. 5
(1) “Council Framework Decisio0n 2008/919/JHA’ (COE, 2008) http://eur-lex.europa.eu/legal-
content/en/txt/PDF/?uri=CELEX:32008F0919> accessed 16 December 2017.
126
IACtHR ‘Annual Report for the Inter-American Commission on Human Rights 1994’ (17 February 1995) OEA/
SerL/ V/V 212 Doc 9 [40].
127
Brandenburg v. Ohio, 395 U.S. 444 (United States Supreme Court, 27 February 1969) [447].
128
Hess v Indiana , 414 U.S. 105, 108 ( United States Supreme Court, 1973) [109].
129
Otto-Preminger-Institut v. Austria App no 13470/87 (ECtHR, 20 September 1994) [49]; Giniewski v. France
App no 64016/00 (ECtHR, 31 January 2006) [43;52].
130
Alves Da Silvia v. Portugal App no 41665/07 (ECtHR, 20 October 2009) [28]; Anne Weber, ‘Manual on Hate
Speech’ (COE, September 2009) [51]; Iginio Gagliardone and others ‘Countering Online Hate Speech’ (UNESCO,
2015) [12].
131
S Rangarajan v. P Jagjivan Ram (SCtI, 30 March 1989) (2) SCR 204 [226].
16
existed between the leader of True Religion and the Minister of Immigration of Turtonia and
he considered that the matter is of greatest public interest as well as the post reflected the
rising fear of the people further enhanced by the threat to national security. There were no
calls for violence and no dissemination of hatred.
IV- TURTONIA’S PROSECUTION OF SCOOPS UNDER THE IA VIOLATES
A- The IA fails to clarify the key terms leading to an imprecise law
46. Freedom of expression is a fundamental and universal human right 132 that applies equally to
both speeches presented on the Internet as well as those delivered through more traditional
means.133 ICCPR Article 19 recognizes that everyone shall have the right to impart
information either orally, in writing or in print, or even through any other media of his
choice. Hence, in the aim of insuring such a freedom other rights such as the right to privacy
and the right to public participation must be protected through the implementation of some
restrictions.
47. Accordingly, the Turtonian government passed the IA law in order to preserve the integrity
of the democratic process and avoid the hijacking of elections as well as to safeguard the
peace.134 As written, the IA forbids an individual, organization or other publisher from
132
Handyside v United Kingdom App no 5493/72 (ECtHR, 7 December 1976) [49].
133
Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR) art 19;
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March
1976) 999 UNTS 171 (ICCPR) art 19; European Convention on Human Rights (adopted 4 November 1950, entered
into force 3 September 1953) 213 UNTS 1932 (ECHR) art 10; American Convention on Human Rights (adopted 22
November 1969, entered into force 18 July 1978) (ACHR) art 13; African Charter on Human and Peoples’ Rights
(adopted 27 June 1981, entered into force 21 October 1986) 21 ILM 58 (ACHPR) art 9; See also ACmHPR
‘Resolution on the Adoption of the Declaration of Principles of Freedom of Expression in Africa’ (2002)
ACHPR/Res 62(XXXII)02 Principle II; ACmHPR ‘Zimbabwe Lawyers for Human Rights & Institute for Human
Rights and Development in Africa v Zimbabwe’ (2009) AHRLR 268 Comm. no 294/04 [80].
134
Compromis, ¶ 11.1.
17
consciously communicating false information to the public. Moreover, in case the Court was
to conclude the IA as a valid restriction against Scoops, it will actually be inoperative due to
the fact that its conduct does not fall within the IA’s scope.135
48. As mentioned, the IA states that an individual, organization or other publisher may not
knowingly communicate to any person, by any means, information that the individual,
organization, or other publisher communicating such information knows to be false. 136 Yet,
the IA lacks explanation when it comes to defining the term ‘knowingly communicate false
information’.
49. According to Scientology-case in the 1996, the providers are not liable, on the grounds that
they do not have access or knowledge of the things disseminated by their users. 137 Also, prior
case law Cubby Inc. vs. CompuServe Inc., had considered a network operator to be a
distributor that is only liable for defamatory comments if he knew their libelous
nature.138This principle can be also found in Smith v. California139 and N.Y. Times v.
Sullivan,140 Western Union Telegraph v. Lesesne141 in which the U.S. Supreme Court held
that a distributor must have demonstrable knowledge of the defamatory content prior to
dissemination in order to be held liable for releasing the content.
135
Article 19, United Nations Human Rights Office of the High Commissioner, International Covenant on Civil and
Political Rights Adopted and opened for signature, ratification and accession by General Assembly resolution
2200A (XXI) of 16 December 1966 entry into force 23 March 1976, in accordance with Article 49
<http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx> accessed 23 December 2017.
136
Compromis, ¶ 11.2(a).
137
President of Court of 's Gravenhage 12 March 1996, Informatierecht/AMI, 1996/5, p. 96-97.
138
Cubby, Inc. v. CompuServe Inc., 776 F. Supp. 135 (S.D.N.Y. 1991).
139
Smith v. California, 361 U.S. 147 (United States Supreme Court, 1959).
140
New York Times Co. v. Sullivan, 376 U.S. 254 (United States Supreme Court, 1964).
141
Western Union Telegraph Co. v. Lesesne, 182 F.2d 135 (4th Cir. 1950).
18
50. And seeing how it is only mentioned that Scoops is a social media platform where users build
their own profiles and can therefore upload photos and videos with up to 200 words of text;
denies the possibility of it being a publisher. Scoops cannot edit nor monitor the data before
dissemination; once the users hit send the content will appear on the screens of the devices of
other users142 and ‘it would be impossible for service providers to screen each of their
millions of postings for possible problems’. 143
51. Consequently, Scoops cannot be prosecuted for knowingly communicating false information
when in fact; it has no access to such information prior to distribution. Thus, according to
section 230 immunity, 144 no provider or user of an interactive computer service shall be
treated as the publisher or speaker of any information provided by another information
content provider. In addition to the ‘special liability regime’ introduced by the eCommerce
which gives hosting providers’ immunity when they do not have actual knowledge of illegal
activity or information.145
52. In application to both acts, Scoops can benefit from the limited liability regime and
shouldn’t be prosecuted seeing how it had no actual knowledge of the post before
publication. From one hand, Scoops specifies in its Terms and conditions that they do not
allow harmful and malicious content such as non-consensual sharing of intimate images146
and knowingly communicating such a content would be in violation of their own terms of
142
Compromis, ¶ 5.1.
143
Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997).
144
47 U.S.C. paragraph 230 – Telecommunications act of 1996.
145
of online intermediaries (p.8) <ec.europa.eu/information_society/newsroom/cf/document.cfm?doc_id=835>
146
Compromis, ¶ 9.2.
19
service which would be irrelevant. On another hand, XYZ News also used its Scoops account
to declare its disconnection with the post,147 making Scoops once more a neutral platform to
share news and opinions. Therefore, Scoops should be considered a distributor and not a
publisher leading to them benefiting from the shields of immunity put into place by both the
CDA of 1996 and the eCommerce.
B- The imprecision of the notice and take-down procedure in the IA reflecting in the discretion
of the Court
53. According to the IA, to get immunity the online service provider (OSP) should expeditiously
remove or disable access to material if it learns of the infringement, or facts or circumstances
that make the infringement apparent, or receives a notification.148 It is important to say that
the IA lacks precision when it comes to using the term ‘expeditiously’, leaving the OSP in
complete confusion. For instance, the eCommerce does not define when the OSP is ‘actually
aware of the illegal information’.149 As a result, every Member State has adopted its own
practice for verifying the presence of the required level of knowledge. In the Netherlands, a
court order is needed while in the UK the courts must take into consideration whether the
notice was received through a specified means of contact.150
54. In this case, Scoops did not receive a court order nor the notice was received through a
147
Compromis, ¶ 9.1.
148
Compromis, ¶ 11.2 3(c).
149
150
20
specified means of contact.151
55. In contrast, to the eCommerce, the CDA that is adopted in the U.S. to immune intermediaries
from their user’s liability, does not require the OSP to abide by a notice-and-takedown
procedure in order to benefit from the liability protection. 152 In addition to it that this
protection includes claims regarding defamation, but also distribution of incorrect
information and privacy infringements. 153
56. In application to what has been said, if we were to defend Scoops’ prosecution in the U.S. a
notice-and-takedown procedure wouldn’t be necessary for them to benefit from the liability
protection. Seeing the confusion of the Courts on such a concept, the District Court decided
to leave this procedure behind by ruling that it found no legal grounds on which to hold the
association responsible for failing to remove the blog post and comment sooner than it had
done.154
57. As for Scoops, the post and shares of the post were removed 155 at 1:00pm on May 5, 50
hours after the submission of the complaint; approximately after 2 days. Regardless of the
duration, Scoops did remove the post and they had taken the necessary technical measures to
151
Compromis, ¶ 9.2
152
Liability of online intermediaries, Section 230 of the Communications Decency Act of 1996 (a common name for
Title V of the Telecommunications Act of 1996) is a landmark piece of Internet legislation in the United States,
codified at 47 U.S.C. § 230 (p.32) <ec.europa.eu/information_society/newsroom/cf/document.cfm?doc_id=835>
153
Title V of the Telecommunications Act of 1996) is a landmark piece of Internet legislation in the United States,
codified at 47 U.S.C. § 230 (p.32) <ec.europa.eu/information_society/newsroom/cf/document.cfm?doc_id=835>
154
Pihl v. Sweden, no 74742/14 (ECtHR, 7 February 2017).
155
Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1124 (9th Cir. 2003).
21
stop the illegal activity by removing all shares too, which makes them rightful to the liability
immunity. 156 When it comes to the duration inconvenience, one should take into
consideration that Scoops had made an effective report form that gives four options two of
which are agreeing to the content being a spam or a non-consensual sharing of intimate
images. Accordingly, Scoops had put into place a successful report form in order to meet the
urgent need for speed 157 and by not following the Terms of service it would be inappropriate
to ask for swiftness in the takedown procedure.
58. In Japan, for instance, in order to balance both the user’s speech right and his right to reply,
the OSP must first transfer the takedown claim to its user and after seven days the OSP may
then block the illegal material without being liable for the content.158
59. While in the U.S., OSP benefit from the CDA which gives them almost absolute immunity
from nearly all forms of tort liability such as defamatory speech without having to obey to
any notice-and-takedown procedure.159
60. Thus, we can clearly see that there’s no uniform ‘notice-and-takedown’ procedure which
reflects in a legal gap. Accordingly, an unstable concept is better to be left behind seeing how
156
"Liability for On-line Intermediaries: A European Perspective", 1998 decision, referred to by R. JULIA-
BARCELO.
157
Compromis, ¶ 9.2.
158
Title V of the Telecommunications Act of 1996) a landmark piece of Internet legislation in the United States,
codified at 47 U.S.C. § 230 (p.41 and p.228)
<ec.europa.eu/information_society/newsroom/cf/document.cfm?doc_id=835> accessed 23 December
2017.
159
Title V of the Telecommunications Act of 1996) a landmark piece of Internet legislation in the United States,
codified at 47 U.S.C. § 230 (p.32-34) <ec.europa.eu/information_society/newsroom/cf/document.cfm?doc_id=835>
22
in fact nowadays, the content can be widely spread almost instantly and is often mirrored,
archived, and available years after the initial publication. 160
61. In our case, the post went viral on Scoops and it spread to other websites and social media
within the first hour of appearing. So if we were to say that a couple of hours were to be a
‘reasonable time’ to remove the post, according to the facts of the case the damage had
already been done. It’s true that the post needed to be removed from Scoops seeing how they
initiated it however, according to the UK’s ‘multiple publication rule’” 161 each individual or
OSP that distribute the defamatory content can be considered separately liable, leading to a
limitless chain of liabilities in practice. Thus to say, if we were to engage Scoops’ liability,
other OSPs that have the post in store should be liable as well which would be impossible to
put into place.
62. Consequently, the duration of the takedown of the post holds no importance in the case
seeing how removing it within a couple of hours wouldn’t have stopped it from being spread
nor would it have protected the Minister’s reputation and her right to privacy faster.
160
<https://www.opensocietyfoundations.org/sites/default/files/mapping-digital-media-liability-content-internet-
20110926.pdf> accessed 23 December 2017.
161
<https://www.opensocietyfoundations.org/sites/default/files/mapping-digital-media-liability-content-internet-
20110926.pdf> accessed 23 December 2017.
23
PRAYERS FOR RELIEF
For the foregoing reasons, the Applicants respectfully request this Honourable Court to adjudge
and declare:
I. Turtonia’s prosecution of Peaps under the ODPA violated international principles,
including Article 19 of the UDHR and Article 19 of the ICCPR.
II. Turtonia’s prosecution of Scoops under ODPA violated article 19 of the ICCPR.
III. Turtonia’s prosecution of Peaps under the IA violated international principles, including
Article 19 of the UDHR and Article 19 of the ICCPR.
IV. Turtonia’s prosecution of Scoops under IA violated article 19 of the ICCPR.
On behalf of Niam Peaps and Scoops
504A
Agents for the Applicants
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Peaps & Scoops

The Federal Republic of Turtonia

MEMORIAL FOR APPLICANTS

TABLE OF CONTENTS .......................................................................................................... i

LIST OF ABBREVIATIONS ................................................................................................. iii

LIST OF AUTHORITIES ........................................................................................................v

STATEMENT OF RELEVANT FACTS .............................................................................. xii

STATEMENT OF JURISDICTION .....................................................................................xix

QUESTIONS PRESENTED ................................................................................................... xx

SUMMARY OF ARGUMENTS ............................................................................................xxi

I. TURTONIA’S PROSECUTION OF PEAPS UNDER ODPA VIOLATES

INTERNATIONAL PRINCIPLES INCLUDING ARTICLE 19 OF THE ICCPR ............1

his right to freedom of expression ........................................................................................1

1- The Fundamental Nature of Freedom of Expression .....................................................1

2- Peaps’ post constitutes a highly-protected political speech ............................................3

B. The ODPA unnecessary and overly-restrictive language threatens unfettered criminal

1- Turtonia imparted an unforeseeable and disproportionately harsh punishment on Peaps

ARTICLE 19 OF THE ICCPR .............................................................................................9

B. The ODPA challenges the users’ right to speech ............................................................ 12

III. TURTONIA’S PROSECUTION OF PEAPS UNDER IA VIOLATES

INTERNATIONAL PRINCIPLES INCLUDING ARTICLE 19 OF THE ICCPR .......... 14

consequences of their conduct ............................................................................................ 14

IV. TURTONIA’S PROSECUTION OF SCOOPS UNDER THE IA VIOLATES

ARTICLE 19 OF THE ICCPR ........................................................................................... 17

discretion of the Court ........................................................................................................ 20

PRAYERS FOR RELIEF ....................................................................................................... 24

ACHPR African Charter on Human and Peoples’ Rights

ACmHPR African Commission on Human and Peoples’ Rights

ACtHPR African Court of Human and Peoples’ Rights

ACHR American Convention on Human Rights

COE Council of Europe

CDA The Communication Decency Act of 1996

ECHR European Convention on Human Rights

eCommerce The Electronic Commerce Directive

ECtHR European Court of Human Rights

ICCPR International Covenant on Civil and Political Rights

IA Information Act of 2006

IACHR Inter-American Commission on Human Rights

IACtHR Inter-American Court of Human Rights

OAS Organization of American States

ODPA Online Dignity Protection Act of 2015

OSCE Organization for Security and Co-operation in Europe

SCtI Supreme Court of India

UDHR Universal Declaration of Human Rights

UKHL United Kingdom House of Lords

UNHRC United Nations Human Rights Committee

UNGA United Nations General Assembly

INTERNATIONAL AND REGIONAL INSTRUMENTS

1978) (ACHR) .................................................................................................................. 1, 17

October 1986) 21 ILM 58 (ACHPR) .................................................................................. 1, 17

September 1953) 213 UNTS 1932 (ECHR) ................................................................... 1, 3, 17

force 23 March 1976) 999 UNTS 171 (ICCPR) ................................................................. 1, 17

AFRICAN COMMISSION ON HUMAN AND PEOPLE'S RIGHTS CASES

(ACmHPR, 1998) ....................................................................................................................2

EUROPEAN COURT OF HUMAN RIGHTS CASES