Price Media Law Moot Court Competition 2016 (R)

Memorial for R | TC: 216R
BEFORE THE
UNIVERSAL FREEDOM OF EXPRESSION COURT
In the matter of,
Article 19 of U.D.H.R. and I.C.C.P.R.
Appeal No. - _______/2017
PRICE MEDIA LAW MOOT COURT COMPETITION, 2016/17

APPLICANT
RESPONDENT
Ballaya and SeeSey
VERSUS
State of Amostra
BEFORE SUBMISSION TO
THE HONOURABLE PANEL OF

UNIVERSAL FREEDOM OF EXPRESSION COURT
MEMORAMDUM ON BEHALF OF THE RESPONDENT
[Word Count: ]
MEMORIAL FOR RESPONDENT

PRICE MEDIA LAW MOOT COURT COMPETITION
TABLE OF CONTENTS
1.
LIST OF ABBREVIATION
ii-iii
2.
LIST OF AUTHORITIES
iv-xiii
3.
STATEMENT OF RELEVANT FACTS
4.
STATEMENT OF JURISDICTION
xvii
5.
QUESTIONS PRESENTED
xviii
6.
SUMMARY OF ARGUEMENTS
7.
ARGUMENTS ADVANCED
xvi-xiv
xix-xxii
1-24
A Whether Amostras prosecution of Ballaya under the SIA violates international principles,
including Article 19 of Universal Declaration of Human Rights (UDHR) and Article 19 of
the International Covenant on Civil and Political Rights (ICCPR).......................................1-6
B. Whether Amostras prosecution of Ballaya under the ESA violates international principles,
including Article 19 UDHR and Article 19 of the ICCPR......................................................7-10
C. Whether Amostra has jurisdiction to obtain and enforce the civil order against SeeSey in
Amostra and Sarranto............................................................................................................11-16
D. Whether Amostras civil order against SeeSey violates international principles, including
Article 19 of UDHR and Article 19 of the ICCPR.................................................17-24
8.
PRAYER
25

LIST OF ABBREVIATIONS
ACHPR
African Charter on Human and Peoples
Rights
ACHR
American Convention on Human Rights
ACommHPR
African Commission on Human and

Peoples Rights
ATEL
Anti-Terrorism & Extremism Law of 2012
CERD
Committee on the Elimination of Racial

Discrimination
CJEU
Court of Justice of the European Union
ECHR
Convention for the Protection of Human

Rights and Fundamental Freedoms
ECtHR
European Court of Human Rights
App
Application
EU
European Union
HRC
Human Rights Committee

Inter-American Commission on Human
IACHR
Rights
IACtHR
Inter-American Court of Human Rights
ICCPR
International Covenant on Civil and Political

Rights
ICTR
International Criminal Tribunal for Rwanda
OHCHR
United Nations Office of the High

Commissioner for Human Rights
ii

SCOTUS
Supreme Court of the United States of

America
UDHR
Universal Declaration of Human Rights
UK
United Kingdom
UN
United Nations
UNESCO
United Nations Educational, Scientific and
Cultural Organisation
UNGA
United Nations General Assembly
UNHRC
United Nations Human Rights Council
US
United States of America
v.
versus
ESA
Election Safety Act
SIA
Stability and Integrity Act
Art.
Article
iii

LIST OF AUTHORITIES
STATUTES
Act against Restraints of Competition, 2013 .............................................................................. 13
Compute Fraud and Abuse Act (U.S.) ........................................................................................ 13
Computer Misuse Act, 1990 (U.K.) ............................................................................................ 13
Crime Control Act, 1984 ............................................................................................................ 13
Danish Penal Code (Denmark) ................................................................................................... 13
French Code of Criminal Procedure, 2000 ................................................................................. 12
Hostage Taking (U.S.) 18 USC .................................................................................................. 13
Patriot Act (U.S.) ........................................................................................................................ 13
Third US Restatement of Foreign Relations Law (U.S.) ............................................................ 13
TREATISES
ICCPR; See also UN Economic and Social Council, UN Sub-Commission on Prevention of
Discrimination and Protection of Minorities, Siracusa Principles on the Limitation and
Derogation of Provisions in the ICCPR (1984) Annex, UN Doc E/CN 4/1984/4................. 20
CASES
CASES OF ECtHR
Ahmet Yldrm v. Turkey App no 3111/10 (ECtHR, 18 December 2012) ............................. 1, 14
Aksu v. Turkey App nos. 4149/04 and 41029/04 (ECtHR, 15 March 2012) ........................ 18, 19
Alinak v. Turkey App no. 40287/98 (ECtHR, 29 March 2005) .................................................... 4
AS v. Estonia App no 64569/09 (ECtHR, 10 October 2013) (Delfi October 2013) .......... 21, 23
Balik v. Turkey App no. 25/02 (ECtHR, 29 November 2007) .................................................... 9
Bladet Troms and Stensaas v. Norway [GC] App no. 21980/93 (ECtHR, 20 May 1999) ......... 6
iv

Centro Europa 7 S R L and Di Stefano v. Italy App no 38433 (ECtHR, 7 June 2012) ................ 2
De Haes and Gijsels v. Belgium App No. 19983/92 (ECtHR, 24 February 1997) ...................... 6
Delfi AS v Estonia App no 40287/98 (ECtHR, 16 June 2015) .......................................... 2,20,21
Delfi AS v. Estonia, App no. 64569/09 (ECtHR 10 October 2013) ............................................ 2
Editorial Board of Pravoye Delo and Shtekel v. Ukraine App no 33014/05 (ECtHR, 5 August
2011) ..................................................................................................................................... 1, 2
Erbakan v. Turkey App no. 35071/97 (ECtHR, 14 June 2004 ................................................... 18
Faurisson v. France UN Doc CCPR/C/58/D/550/1993 (HRC, 8 November 1996) .................... 8
Fatullayev v. Azerbaijan App no. 40984/07 (ECtHR, 22 April 2010) ....................................... 24
Fret v. Belgium App No. 15615/07 (ECtHR, 16 July 2009) .................................................... 19
Gndz v. Turkey App no. 35071/97 (ECtHR, 4 December 2003). ........................................ 4,10
Gurtekin v. Cyprus App nos 60441/13, 68206/13, 68667/13 (ECtHR, 11 March 2014) ............. 3
Huvig v. France App no. 11105/84 (ECtHR 24 April 1990) ....................................................... 3
Incal v. Turkey App No. 22678/93 (ECtHR, 9 June 1998) ........................................................ 19
Jersild v. Denmark App No. 15890/89 (ECtHR, September 1994) ................................. 6, 18, 20
Jerusalem v. Austria App No. 26958/95 (ECtHR, 27 February 2001) ........................................ 5
Karatas v. Turkey App No. 23168/94 (ECtHR, 8 July 1999) .................................................... 18
Klass v. Germany App no 5029/71 (ECtHR, 6 September 1978) ................................................ 3
Kokkinakis v. Greece, App no. 14307/88, (ECtHR, 25 May 1993) ............................................. 2
Krasulya v. Russia App No. 12365/03 (ECtHR, 22 May 2007) .................................................. 5
Kruslin v. France App no. 11801/85 (ECtHR, 24 April 1990) .................................................... 3
Le Pen v. France App No. 18788/09 (ECtHR, 20 April 2010) .................................................. 19
Lehideux and Isorni v. France App No. 24662/94 (ECtHR, 23 September 1998) .............. 18, 19
Lindon, Otchakovsky-Laurens and July v. France, App no. 21275/02, (ECtHR 22 October
2007) ......................................................................................................................................... 2

Makhmudov v. Russia App No. 35082/04 (ECtHR, 26 July 2007). ........................................... 10

Malone v. UK App no 8691/79 (ECtHR, 2 August 1984) ........................................................ 1, 3
Medya FM Reha Radyo ve Iletiim Hizmetleri A. . v. Turkey App no. 32842/02 (ECtHR 14
November 2006) ........................................................................................................................ 5
Mller v. Switzerland App no. 10737/84 (ECtHR, 24 May 1988) ............................................... 2
Osmani and Others v. Former Yugoslavia Republic of Macedonia App no. 50841/99 (ECtHR,
11 October 2001)....................................................................................................................... 9
Oya Ataman v. Turkey App no. 74552/01 (ECtHR, 29 November 2007) .................................... 9
zgr Gndem v. Turkey App No. 23144/93 (ECtHR, 16 March 2000) ................................ 8,10
Rekvnyi v. Hungary [GC], App no. 25390/94 (ECtHR, 24 December 1993) ............................. 2
Seurot v. France App No. 57383/00 (ECtHR, 18 May 2004) .................................................... 18
Silver v. UK App nos 5947/72, 6205/73, 7052/75, 7061/75, 7107/75, 7113/75, 7136/75
(ECtHR, 25 March 1983) ...................................................................................................... 1, 3
Srek (no.1) v. Turkey App No. 26682/95 (ECtHR, 8 July 1999).......................................... 8, 18
Tammer v. Estonia App No. 41205/98 (ECtHR, 6 February 2001) ............................................. 5
Times Newspapers Ltd (nos. 1 and 2) v. the United Kingdom App nos. 3002/03 and 23676/03
(ECtHR, 10 June 2009) ........................................................................................................... 14
Uzun v. Germany App no 35623/05 (ECtHR, 2 September 2010)............................................... 3
VereinigungBildenderKnstler v. Austria App no. 68354/01 (ECtHR, 25 January 2007) ........ 18
Von Hannover v. Germany App No. 59320/00 (ECtHR, 24 September 2004) ........................... 5
Weber and Saravia v. Germany App no 54934/00 (ECtHR, 29 June 2006) ................................ 1
Worm v. Austria, App No. 22714/93 (ECtHR, 29 August 1997) ................................................. 4
Zana v. Turkey App No. 18954/91 (ECtHR, 25 November 1997) ............................................... 8
US CASES
Asahi Metal Indus. v. Superior Court (1987) 480 U.S. 102, 112 ............................................... 15
vi

Blackmer v. United States,(1932) 284 U.S. 421 ......................................................................... 13

Continental Ore Co. v. Union Carbide and Carbon Corp. (1962) 370 U.S. 690, 704 .............. 13
Intl Shoe Co. v. Wash. (1945) 326 U.S. 310, 316 ..................................................................... 15
Miller v. California (1973) 413 US 15, 23 .................................................................................. 4
re Uranium Antitrust Litig.,(1980) 617 F.2d 1248, 1253-54 ...................................................... 13
Rivard v. United States, (1967) 375 F.2d 882, 886 .................................................................... 13
Skiriotes v. Florida, (1941) 313 U.S. 69 .................................................................................... 13
Steele v. Bulova Watch Co., (1952) 344 U.S. 280 ...................................................................... 13
Strassheim v. Dailey, (1911) 221 U.S. 280 ................................................................................ 13
United States v. Bowman, (1922) 260 U.S. 94, 98 ..................................................................... 13
United States v. Watchmakers of Switzerland Information Center, Inc., 1963 Trade Cas. 70600
(S.D,N.Y. 1962) ...................................................................................................................... 13
US v. Benitez (1984) 741 F.2d 1312, 1316 ................................................................................. 13
US v. Layton (1981) 509 F.Supp. 212 ........................................................................................ 12
World-Wide Volkswagen Corp. v. Woodson (1980) 444 U.S. 286, 292 ..................................... 15
Zenith Radio Corp. v. Matsushita Elec. Indus. Co., (1980) 494 F. Supp. 1161, 1177 ............... 13
CASES OF HRC
Bodrozic v. Serbia and Montenegro UN Doc CCPR/C/85/D/1180/2003 (HRC, 31 October
2005) ....................................................................................................................................... 22
Coleman v. Australia UN Doc CCPR/C/87/D/1157/2003 (HRC, 10 August 2006) .................... 5
Coleman v. Australia UN Doc CCPR/C/87/D/1157/2003 (HRC, 10 August 2006). ................... 6
Dissanayake v. Sri Lanka UN Doc CCPR/C/93/D/1373/2005 (HRC, 4 August 2008) ............... 1
J.R.T. and the W.G. Party v. Canada UN Doc CCPR/C/OP/2 at 25 (HRC, 6 April 1983) ......... 8
Leonardus Johannes Maria de Groot v. The Netherlands U.N. Doc. CCPR/C/54/D/578/1994
(HRC, 24 July 1995). ................................................................................................................ 2
vii

Malcolm Ross v. Canada UN Doc CCPR/C/70/D/736/1997 (HRC, 18 October 2000) ........ 3, 21

Marques v. Angola UN Doc CCPR/C/83/D/1128/2002 (HRC, 29 March 2005)......................... 6
Monja Jaona v. Madagascar UN Doc Supp No. 40 (A/40/40) at 179 (1985) (HRC, 6 April
1984) ......................................................................................................................................... 1
Monja Jaona v. Madagascar, U.N. Doc. Supp. No. 40 (A/40/40) at 179 (1985) (HRC, 1 April
1985) ......................................................................................................................................... 4
Robert W Gauthier v. Canada UN Doc CCPR/C/65/D/633/1995 (HRC, 7 April 1999) ............. 1
Shin v. Republic of Korea UN Doc CCPR/C/80/D/926/2000 (HRC, 16 March 2004) .............. 22
Shin v. Republic of Korea, UN Doc CCPR/C/80/D/926/2000 (2004) (HRC, 16 March 2004) ... 6
Toonen v. Australia, UN Doc CCPR/C/50/D/488/1992 (1994) (HRC, 30 March 1994). ............ 4
Viktor Korneenko et al. v. Belarus UN Doc CCPR/C/88/D/1274/2004 (HRC, 10 November
2006) ......................................................................................................................................... 1
CASES OF ICJ
Congo v. Belgium (ICJ, 14 February 2002) pp. 3, 36; 128 ILR ................................................. 11
Congo v. Belgium, [2002] ICJ 1 ................................................................................................. 13
UK CASES
Ex parte Pinochet (No. 3) [2000] 1 AC 147, 188; 119 ILR ....................................................... 11
Holmes v. Bangladesh Binani Corporation [1989] 1 AC 1112, 1137; 87 ILR .......................... 11
Joyce v. Director of Public Prosecutions, [1946] AC 347; 15 AD ............................................ 12
CASES FROM OTHER COURTS AND INTERNATIONAL TRIBUNALS

Coty Germany GmbH v. First Note Perfumes NV, C360/12 (CJEU, 5 June 2014) .................. 15
Demenuk v. Dhadwal, 2013 BCSC 2111 ................................................................................... 23
ICI v. Commission Case 48/69 (CJEU,14 July 1972)................................................................. 13
viii

Google Spain SL, Google Inc. v. Agencia Espaola de Proteccin de Datos (AEPD), Mario
Costeja Gonzlez C-131/12 (CJEU, 13 May 2014) .......................................................... 11, 15
Magyar Tartalomszolgltatk Egyeslete and Index.hu Zrt v. Hungary, .................................. 14
Peter Pinckney v. KDG Mediatech AG C170/12 (CJEU, 3 October 2013) .............................. 15
Pez Hejduk v. EnergieAgentur.NRW GmbH. C441/13 (CJEU, 22 January 2015) .................... 15
re Urios, ...................................................................................................................................... 12
CASES OF IACtHR
Francisco Martorell v. Chile (IACtHR, 3 May 1996); IACtHR, .............................................. 21
Herrera-Ulloa v. Costa Rica, (IACtHR, 2 July 2004) ............................................................... 21
Tristn Donoso v. Panam (IACtHR, 27 January 2009) ............................................................ 4
CASES OF ACPHR
Zegveld v. Eritrea 250/02 (ACPHR, 20 November 2003) ........................................................... 4
UN DOCUMENTS
General Comment 11: Prohibition of propaganda for war and inciting national, racial or
religious hatred (Art. 20), 29 July 1983 ............................................................................ 20, 23
HRC, General Comment 10 (1985) UN Doc CCPR/C/GC/10 (General Comment 10) ......... 8
HRC, General Comment 27 (2 November 1999) UN Doc CCPR/C/21/Rev.1/Add.9 (General
Comment 27) para. 14 ............................................................................................................. 6
Report of the Special Rapporteur for Freedom of Expression (2009) OEA/SER L/V/II Doc 51
................................................................................................................................................. 21
UN Human Rights Committee, General Comment No. 10: Freedom of expression (Art. 19) : .
29/06/1983............................................................................................................................... 20
UNESCO, Countering Online Hate Speech(UNESCO Publishing 2015) .................................. 2
ix

UNHRC, Note by the Secretary-General transmitting the report of the SRSG on human rights
defenders (5 September 2006) UN Doc A/61/312 (UNHRC September 2006 Report) ....... 9
UNHRC, Report of the Special Rapporteur on Minority Issues (5 January 2015) .................... 2
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). ......................................................................................................................... 21
UNHRC, Report of the Special Rapporteur on the Promotion and Protection of the Right to
Freedom of Opinion and Expression (22 May 2015) UN Doc A/HRC/29/32 (UNHRC May
2015 Report) .......................................................................................................................... 20
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) ..................................................................................................................................... 4
UNHRC, Report of the Special Rapporteur on the rights to freedom of peaceful assembly and
of association (21 May 2012) UN Doc A/HRC/20/27 (UNHRC May 2012 Report) ......... 10
UNHRC, Report of the Special Rapporteur on the rights to freedom of peaceful assembly and
of association (24 April 2013) UN Doc A/HRC/23/39 (UNHRC April 2013 Report) ....... 10
UNHRC, Report of the United Nations High Commissioner for Human Rights on Effective
measures and best practices to ensure the promotion and protection of human rights in the
context of peaceful protests' (21 January 2013), UN doc A/HRC/22/28 .................................. 9
United Nations Economic and Social Council, Siracusa Principles on the Limitation and
Derogation Provisions in the International Covenant on Civil and Political Rights, UN Doc
E/CN.4/1985/4, Annex (28 September 1984). .......................................................................... 1
OTHER AUTHORITIES

and Contemporary Problems, 1988: Extraterritoriaal Subsidiary Jurisdiction ........................... 14

Art. 13 (ACHR) American Convention on Human Rights, Pact of San Jose, Costa Rica (B32), adopted 22 November 1969, entered into force 18 July 1978; available at
http://www.oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights.pdf General
Comment 11: Prohibition of propaganda for war and inciting national, racial or religious
hatred (Art. 20), 29 July 1983. ................................................................................................ 20
Article 19, The Johannesburg Principles on National Security, Freedom of Expression and
Access to Information (1996) .................................................................................................. 9
Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition
and enforcement of judgments in civil and commercial matters (Brussels I). ........................ 15
Mariana Mello, Hagan v. Australia: A Sign of the Emerging Notion of Hate Speech in
Customary International law ................................................................................................... 21
O.G.H., June 11, 1930, SZ XII/142 (accessed at Arthur Lenhoff, International Law and Rules
on International Jurisdiction, 50 Cornell L. Rev. 5 (1964) Available at:
http://scholarship.law.cornell.edu/clr/vol50/iss1/2). ............................................................... 16
Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that
constitutes incitement to discrimination, hostility or violence <access at:
http://www.ohchr.org/Documents/Issues/Opinion/SeminarRabat/Rabat_draft_outcome.pdf>
last accessed on 19/10/2016. ................................................................................................... 18
BOOKS
Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (Kehl am
Rhein, Engel, 2005)................................................................................................................. 10
xi

P.J.Fitzgerald., Salmond on Jurisprudence, 12th Edition, 1966, Universal Law Publishing

Co. Pvt. Ltd, Delhi .................................................................................................................. 23
ARTICLES FROM INTERNET
Alon Harel, What Demands Are Rights? An Investigation into the Relation between Rights
and Reasons, .......................................................................................................................... 19
Batrice Farano, Internet Intermediaries Liability for Copyright and Trademark Infringement:
Reconciling the EU and US Approaches (2012) Transatlantic Technology Law Forum
Working Paper no 14 .............................................................................................................. 22
Danielle Citron, Intermediaries and Hate Speech: Fostering Digital Citizenship for our
Information Age (2011) 91 Boston University Law Review ................................................ 22
Inter-Parliamentary Coalition for Combating Anti-Semitism, Report and Recommendations of
Yuli Edelstein, Speaker of the Knesset, and Christopher Wolf, Chair, National Civil Rights
Committee of the Anti-Defamation League, Co-Chairs of the Task Force on Internet Hate of
the Inter-Parliamentary Coalition for Combating Anti-Semitism (29 May 2013) ................ 22
Ira Nathenson, Super-Intermediaries, Code, Human Rights (2013) 8 Intercultural Human
Rights Law Review 19 ............................................................................................................ 22
John C. Knechtle, When to Regulate Hate Speech, 110 PENN ST. L. REv. 539, 542
(2006)Douglas- Scott .............................................................................................................. 21
Molly Land, Toward an International Law of the Internet (2013) 54 Harvard International
Law Journal ............................................................................................................................. 22
Peter Yu, Region Codes and the Territorial Mess (2012) 30 Cardozo Arts and Entertainment
Law Journal ............................................................................................................................. 22
Roy Balleste, Persuasions and Exhortations: Acknowledging Internet Governance and Human
Dignity for All (2011) 38 Syracuse Journal of International Law and Commerce ............... 22
xii

UNESCO, Background Note: Case Studies on the Role of Internet Intermediaries in

Promoting Freedom of Expression on Internet (12 August 2013) ......................................... 22
xiii

STATEMENT OF RELEVANT FACTS

Unstable Political History of Amostra
State of Amostra is a socially and politically unstable country with the religious sect Zasa in
majority (70% population) and Yona sect being in minority (30% population). Amostra has
experienced increased social unrest in the past five years, as Yona religious minority maintain that
the primarily Zasa-led government has subjected it to various forms of political and economic
discrimination. There have been frequent non-violent protests and occasional skirmishes between
that have resulted in arrests of protestors primarily from the Yona sect.
On February 15, 2016 violence erupted during a protest outside Parliament and during the
clash, a Yona protestor was killed by a blow to the head, possibly from police forces or a small
group of Zasa counter-protestors. This led to months of continued protests. Resultantly, on June
6, 2016, Prime Minister of Amostra announced that general elections would be held in 60 days,
on August 5.
Enactment of Election Safety Act of 2016 (ESA)
In the wake of Elections, the National Election Authority enacted the Election Safety Act
(ESA) with the purpose of restricting election-related speech whereby political
demonstrations to spread an extremist or seditious message were not permitted within 30 days
of elections.
Enactment of the Stability and Integrity Act of 2014 (ESA)
Previously in 2014, after a protest outside of Parliament led to significant destruction of

government property and a series of threats against the lives of the Prime Minister and leading
xiv

officials, the government of Amostra enacted stringent laws prohibiting certain criminal
offences terming them as extremist or anti-patriotic statements. This enactment also provides
for media censorship by mandating all media organisations to register with the Ministry of
Defense and discuss with the Ministry the type of content they intend to publish.
SeeSay and Its Presence in Amostra
SeeSey, a Sarranto based social media platform is available to the citizens of Amostra where
the users can post content and also share or comment on posts they see. SeeSey ranks as the
most popular source of news and political discussion, and users regularly share and comment
on media content on the platform. SeeSay is accessible worldwide, including in Amostra,
which has many SeeSey users, though these users only make up a small fraction of SeeSeys
worldwide users.
SeeSey has the technical ability to block individual posts in individual countries. For instance,
it could make a post invisible in Amostra but visible in the rest of the world.
SeeSey has its headquarters and hosts all worldwide data on servers in Sarranto, a politically
stable country located more than 1000 miles from Amostra. Sarranto also has a large immigrant
population from a number of countries, including Amostra.
SeeSey owns a subsidiary company, SeeSALES, which is headquartered and has its sole office
in Amostra. SeeSALES is independently operated in Amostra. SeeSey has many such
subsidiaries around the world, and does not provide any of them access to the data stored on
SeeSey servers.
Ms. Blenna Ballayas Column in The Times
Ms. Blenna Ballaya, a famous blogger and an insightful and bold writer of the political matters
of the State, is a citizen of Amostra residing in Sarranto. She wrote an article for the Ex-
xv

Amostra Times (The Times), a Sarranto based newspaper which was published in print and
also posted on the website of The Times as well as on the SeeSey Account of The Times on
July 7, 2016. It has been alleged that the column (An Open Letter to the Oppressors) accuses
the Prime Minister and other members of the Zasa sect of corruption and human rights
violations against Yona people, and allegedly calls the August election a sham for Zasa
political gain. The column concluded by calling other anti-government Amostrans for an active
but peaceful Day of Resistance on August 1.
On the Day of Resistance, a minority of the Yona sect demonstrators led an arson attack,
chanting hard-line political messages, setting fire to a Zasa religious building. There was no
evidence that the attackers had read Ballays column.
Amostras Conviction of Ms. Ballaya and Order against SeeSay
Following the riots and violence, Ballaya was arrested and prosecuted under Sections A & B of
the SIA and Section 3 of the ESA. SeeSey was also directed to take down the offensive content
worldwide and post an apology. This was upheld by the Amostras Supreme Court. Now the
matter is before the Universal Freedom of Speech Court.
xvi

STATEMENT OF JURISDICTION
The Universal Court of Human Rights substitutes all jurisdictions of all other regional courts
and becomes the final adjudicator when all national remedies have been exhausted. In the
present case, an ad hoc Chamber of the Universal Court of Human Rights has been established
in order to deal with issues specifically addressing cases concerning Freedom of Expression as
set out in Article 19 of the UDHR. The Chamber is known as the Universal Freedom of
Expression Court.
xvii

QUESTIONS RAISED
A Whether Amostras prosecution of Ballaya under the SIA violates international principles,
including Article 19 of Universal Declaration of Human Rights (UDHR) and Article 19 of
the International Covenant on Civil and Political Rights (ICCPR).
B. Whether Amostras prosecution of Ballaya under the ESA violates international principles,
including Article 19 UDHR and Article 19 of the ICCPR.
C. Whether Amostra has jurisdiction to obtain and enforce the civil order against SeeSey in
Amostra and Sarranto.
D. Whether Amostras civil order against SeeSey violates international principles, including
Article 19 of UDHR and Article 19 of the ICCPR.
xviii

SUMMARY OF ARGUMENTS
A. Although the Freedom of expression is inextricable in a democracy but it is not
absolute. Its exercise must be with the purview of essential restrictions. The Applicant-1
has been convicted by a competent court under s A and s B of the SIA in relation to her
offensive column containing extremist statement against the government which
exceeded the ambit of freedom of expression.
The prosecution is justified on the parameters laid down by the Three-part test. Firstly,
the prosecution is been prescribed by law precisely formulated. The SIA is an
unambiguous and precise legislation as it explicitly lists 6 separate offences which are
included under the definition of extremist and anti-patriotic statements. They have a
board perspective and are provided to face every possibility which may arise during the
volatile political situation of the State. SIA has provided for adequate safeguards,
including appeal and review.
Secondly, the prosecution aimed fair exercise of freedom without resorting to
advocating hatred inciting violence in the minds of readers. On the basis of maintenance
of public order (ordre public) it may, for instance, be permissible in certain
circumstances to regulate speech-making in a particular public place. The exercise of
this freedom carries with it duties and responsibilities. State is obliged to see that the
media does not become a vehicle for the dissemination of hate speech and the
promotion of violence.
Thirdly, the prosecution was necessary and proportionate; the press must not overstep
certain bounds, particularly as regards the reputation and rights of others and given the
unstable situation of the state and the fact that the applicant-1 wrote only political
rumours and nothing substantial. Hence, the prosecution of Applicant-1 is justified.
xix

B. Applicant-1 has been convicted under s 1 and 3 of the ESA for organizing a public
protest through her article which turned violent and the participants attacked the
government officials and government buildings. Applicant-1s act is beyond the ambit
of protection guaranteed by the Universal Freedom of Speech.
The prosecution is justified by the application of Three-part test. Firstly, the prosecution
is provided by a sufficiently precise law. ESA indisputably criminalizes any political
demonstration held within 30 days of the pronounced general elections on August 5, if
it seeks to propagate any extremist or seditious message or has a tendency to incite
violence or threaten the democratic process. The applicant calls for a public protest
using Yona unity song which advocated the use of violent means, despite being aware
of the enactment and the illegality of calling for a political protest.
Secondly, the prosecution was in the pursuit of a legitimate aim. The right of peaceful
assembly and the right to freedom of association are not absolute rights. The restriction
of the maintenance of public order is a valid one. Provided the unstable situation in the
country and the history of public protests turning violent, prosecuting applicant-1 is in
order to maintain public order.
And thirdly, the prosecution is necessary. The enactment protected only peaceful
assemblies and not the ones which had turned violent. Protection is afforded only to
those assemblies which are peaceful. An assembly which has the object of committing
acts of violence or where there are clear indications of a likely disturbance of the peace
or where the acts of violence has been committed, such an assembly loses its status of a
peaceful assembly. Prosecuting applicant-1 is necessary since she has organized a
violent protest in the guise of a peaceful protest. Thus, the prosecution is valid and
justified.
xx

C. The Respondent has forced applicant-2 for the removal of illegal material via a civil
court order under SIA. Pursuant to principles of jurisdiction, respondent is competent to
pass such an order against applicant-2 which can be enforced not only nationally but
also globally.
Firstly, on the basis of Territorial principle of jurisdiction, the material available on the
social media platform of applicant-2 is accessible in respondents territory. A
publication of material which incites violence and hatred against the prevailing political
scenario is bound to exacerbate the law and order situation of the country and thus,
respondent is justified to order the applicant. Further, presence of SeeSales within the
territorial bounds of Amostra also substantiates the validity of exercise of jurisdiction
by respondent.
The contentious newspaper column of Applicant-1 coupled with the sensitive political
situation in Amostra has every chance of disturbing the law and order situation of the
already shaken country. Secondly, on the basis of Protective Principle of jurisdiction, in
order to protect the citizens from the consequences of the post, a state can exercise its
jurisdiction even if the offences are committed by foreign nationals.
And thirdly, by the application of effect doctrine, a state can exercise its jurisdiction if
the acts of foreign nationals affect the state. Respondent can exercise its jurisdiction
since the consequences ensued by the post on the media platform of applicant-2 is in the
state of Amostra. Further, considering the good practices of other states and
internationally accepted precedents that allows a state to exercise its jurisdiction on the
basis of consequences ensued, respondent is justified to order the removal of post
globally.
xxi

D. The right to freedom of expression is inclusive of the right to disseminate information

through internet-based modes of expression. However, reasonable restrictions may be
imposed on it in pursuance of international principles.
Amostras order against SeeSay for global takedown of the impugned content uploaded
on its website is not violative of international principles by virtue of three grounds.
Firstly, the column is a form of hate speech, which is outside the ambit of freedom of
expression. The content has the tendency to incite hatred and violence against the
government, which is testified by the arson attack on August 1. It also fulfills the sixpart test relating to hate speeches. The ECHR, ACHR, African Charter and other
international documents impose reasonable restriction in the form of hate speeches on
the universal right to freedom of expression.
Secondly, the order for removal of the impugned content is a reasonable restriction
under Art. 19(3), ICCPR, which permits restrictions in pursuance of protection of
national security, public order and reputation of others. The order also fulfills the threepart test, namely, that, it is provided by law of the SIA, which is sufficiently precise to
regulate the speech of SeeSay; it pursues the legitimate aim of protecting public order;
and it conforms to the tests of necessity of maintaining public order while also being
proportional in the manner that its removal on global basis is justified in view of the
sensitive political situation of Amostra.
Thirdly, by virtue of third party liability rule, SeeSay cannot avoid the civil takedown
order by claiming to be only an intermediary and not its author. When some information
published by the press is likely to have serious repercussions of on the reputation of
others and can endanger public order, third party defamatory statements can be taken
down from the areas that the intermediary directly controls. Hence, the civil takedown
order is legally justified.
xxii

ARGUMENTS
WHETHER OR NOT AMOSTRAS PROSECUTION OF BALLAYA UNDER THE
A.
SIA VIOLATES INTERNATIONAL PRINCIPLES, INCLUDING ARTICLE 19 OF

UDHR AND ARTICLE 19 OF ICCPR?
[ 1]
It is most humbly submitted that Amostras prosecution of Applicant-1, Ms. Ballaya
under the Stability and Integrity Act of 2016 (SIA) does not violate the international
principles, including Art. 19 of UDHR and ICCPR. The Applicant-1 has been convicted by a
competent court under s. A and s. B of the SIA in relation to her offensive column, An Open
Letter to the Oppressors , published on the print and virtual editions of The Times on July 7,
2016.
[ 2]
The Respondent submits that the prosecution is justified in the light of the Three-Part
Test1, which has been explained hereinunder:

1)
That the prosecution is provided by law.
2)
That the prosecution pursues a legitimate aim.
3)
That the prosecution is necessary and proportional to the offence committed.
1) Prosecution prescribed by law

[ 3]
A statute is prescribed by law if: (a) it is sufficiently precise; (b) it contains adequate
safeguards; and (c) the prosecution under it has a legal basis.2

1
See also United Nations Economic and Social Council, Siracusa Principles on the Limitation and Derogation
Provisions in the International Covenant on Civil and Political Rights, UN Doc E/CN.4/1985/4, Annex (28
September 1984).
2
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 8590; Malone v. UK App no 8691/79 (ECtHR, 2 August 1984) (Malone) paras 6768;
Weber and Saravia v. Germany App no 54934/00 (ECtHR, 29 June 2006) (Weber) para 23; Editorial Board of
Pravoye Delo and Shtekel v. Ukraine App no 33014/05 (ECtHR, 5 August 2011) (Editorial Board) para 51;
Ahmet Yldrm v. Turkey App no 3111/10 (ECtHR, 18 December 2012) (Ahmet) paras 5759; Robert W
Gauthier v. Canada UN Doc CCPR/C/65/D/633/1995 (HRC, 7 April 1999); Dissanayake v. Sri Lanka UN Doc
CCPR/C/93/D/1373/2005 (HRC, 4 August 2008); Viktor Korneenko et al. v. Belarus UN Doc
CCPR/C/88/D/1274/2004 (HRC, 10 November 2006); Monja Jaona v. Madagascar UN Doc Supp No. 40
(A/40/40) at 179 (1985) (HRC, 6 April 1984); Also see HRC, General Comment 32 (23 August 2007) UN Doc

a. The SIA is sufficiently precise3.

[ 4]
The SIA is an unambiguous and precise legislation as it explicitly lists separate
offences.4 The SIA is precise in the manner that Ms. Ballaya could reasonably foresee the
liability of the content of her column.
[ 5]
Laws need not be absolutely precise to keep pace with changing circumstances.5 The
level of precision required depends on the content [and] the field it is designed to cover.6
[ 6]
Whilst certainty in the law is highly desirable, it may bring in its train excessive rigidity
and the law must be able to keep pace with changing circumstances. Accordingly, many laws
are inevitably couched in terms which, to a greater or lesser extent, are vague and whose
interpretation and application are questions of practice.7
[ 7]
The SIA provides for 6 offences against the State and the public at large.8 They have a
board perspective and are provided to face every possibility which may arise during the
volatile political situation of the State. Given the peculiar challenges of regulating online
speech,9 and the many guises of hate speech,10 the SIA is drafted in broader terms.
CCPR/C/GC/32 (General Comment 32) para 29; ICCPR, Concluding Observations on the Fourth Periodic
Report of the United States of America (23 April 2014) CCPR/C/USA/CO/4 para 22.
3
Leonardus Johannes Maria de Groot v. The Netherlands U.N. Doc. CCPR/C/54/D/578/1994 (HRC, 24 July
1995).
4
Competition Case, 10 a.
Mller v. Switzerland App no. 10737/84 (ECtHR, 24 May 1988) (Mller) para 29; Kokkinakis v. Greece,
App no. 14307/88, (ECtHR, 25 May 1993) (Kokkinakis) 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) paras 71, 75.
6
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.;
Delfi AS v. Estonia, App no. 64569/09 (ECtHR, 10 October 2013) (Delfi October 2013) para 72.
7
Rekvnyi v. Hungary [GC], App no. 25390/94 (ECtHR, 24 December 1993) Para 34.
UNESCO, Countering Online Hate Speech(UNESCO Publishing 2015) 1315.

b. The SIA contains adequate safeguards.

[ 8]
The law must indicate with sufficient clarity the scope of any discretion and the
manner of its exercise. 11 The situation of increased social unrest in Amostra, alleged
discrimination against the minority Yona sect by the Zasa-led government, frequent nonviolent protests and occasional skirmishes 12 have made the political situation in the State
sensitive. The Ministry of Defence (herein referred to as MoD) provides for registration of
the media organizations to give them legal recognition while that of discussing the type of
content published or to be published is a means of regulation of content and not curtailment
of the freedom of expression of the people.
[ 9]
Further, the right to an appeal is an adequate safeguard.13 The fact that the Applicants
appealed to the Supreme Court of Amostra substantiates that there is a right to appeal in the
State.
c. The prosecution under the SIA has a legal basis.
[ 10] It is submitted that Applicant-1 have formulated her criticism of the governments
actions resorting to insulting expressions,14 like, calling the August election a sham for Zasa
10
UNHRC, Report of the Special Rapporteur on Minority Issues (5 January 2015) UN Doc A/HRC/28/64
(UNHRC January 2015 Report) para 52. See also UNESCO, Countering Online Hate Speech (n 10) 10.
11
Malone v. UK App no 8691/79 (ECtHR, 2 August 1984) para 68; Liu v. Russia (no 2), App no. 29157/09
(ECtHR, 26 July 2011) (Liu no 2) 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) 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.
12
Competition Case, 1.
13
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.
14
Constantinescu v. Romania, App no. 28871/95 (ECtHR, 27 June 2000) Para 74.

political gain and levying accusations 15 against the government without any substantial
evidence.
[ 11] If, with regard to a particular State party, the Committee has to consider whether a
particular restriction is imposed by law, the State party should provide details of the law and
of actions that fall within the scope of the law.16 The SIA is a valid legislation insofar as
outlining the various offences against the State and the public order as well as mentioning the
corresponding punishment are concerned.
2)
That the prosecution pursues a legitimate aim.17
[ 12] The right to freedom of expression implies that it should be possible to scrutinize and
criticise, even harshly and unreasonably, opinions, as long as this does not advocate hatred
which incites to hostility, discrimination or violence against an individual.
[ 13] It is well established that the freedom of expression is not absolute. 18 The exercise of
this freedom carries with it duties and responsibilities in situations of conflict and tension.19
Further, particular caution is called for when consideration is being given to the publication
of views which contain incitement to violence against the State lest the media become a
vehicle for the dissemination of hate speech and the promotion of violence.
[ 14] Prosecuting hate speech pursues the legitimate aims of protecting public order and
preserving the rights and reputations of others.20 This is because protecting public order
15
16
Monja Jaona v. Madagascar, U.N. Doc. Supp. No. 40 (A/40/40) at 179 (1985) (HRC, 1 April 1985).
17
Toonen v. Australia, UN Doc CCPR/C/50/D/488/1992 (1994) (HRC, 30 March 1994).
18
Zegveld v. Eritrea 250/02 (ACPHR, 20 November 2003) para 59; Tristn Donoso v. Panam (IACtHR, 27
January 2009) para 110; Miller v. California (1973) 413 US 15, 23 ; Worm v. Austria, App No. 22714/93
(ECtHR, 29 August 1997).
19
ener v. Turkey, App No. 26680/95 (ECtHR, 18 July 2000) (ener).
20
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 3640; UNHRC
April 2013 Report (n 10) para 28. See also Malcolm Ross (n 10) para 11.5.

includes sanctioning speech that may incite violence. 21 The content of the offensive
column of Applicant-1 was a diatribe against the government,22 which is a clear violation
of the reasonable limit of freedom of expression.
[ 15] The column by Applicant-1 is a violation of the freedom of expression. On the basis of
maintenance of public order it may be permissible in certain circumstances to regulate
speech-making in a particular public place.23 Acts contrary to principles of national unity are
not protected under freedom of expression as they were likely to incite violence, hatred and
racial discrimination.24
[ 16] The Respondent submits that there are reasonable restrictions on Art. 19 of ICCPR.
Political criticism inevitably collides with the right to protect ones reputation. 25 Hence,
Applicant-1 is liable to be prosecuted for the content of her column.
3)
That the prosecution is necessary and proportional to the offence

committed.
[ 17] When deciding the necessity of limitations on freedom of expression in cases involving
criticism of the government, the courts shall take into account the following elements: the
position of the person criticizing the government, the position of the person against whom the
criticism was directed, the subject matter of the publication, the characterization of the
21
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 2728; General Comment 34 (n ) para 31.
22
23
Coleman v. Australia UN Doc CCPR/C/87/D/1157/2003 (HRC, 10 August 2006).
24
Medya FM Reha Radyo ve Iletiim Hizmetleri A. . v. Turkey, App no. 32842/02 (ECtHR 14 November
2006).
25
Tammer v. Estonia App No. 41205/98 (ECtHR, 6 February 2001) ; Von Hannover v. Germany App No.
59320/00 (ECtHR, 24 September 2004).

contested statement by the domestic court of the contracting state, the wording used by the
person criticizing, and the harshness of the penalty imposed by the domestic court. 26
[ 18] It is submitted that Applicant-1 is a blogger who writes about political rumours.27 The
allegations contained in her column are against the Prime Minister and members of the Zasa
sect, 28 wherein she levies false allegations against public officials a mere days before the
upcoming general elections. Further, all the courts below have upheld the conviction of
Applicant-129 pursuant to the content of column which is provocative, offensive, and harsh.
Resultantly, the penalty is in accordance with the SIA.30
[ 19] Underlining the concept of proportionality 31 of prosecution of Applicant-1, it is
submitted that the press must not overstep certain bounds, particularly as regards the
reputation and rights of others.32
[ 20] It is submitted that the threat is in the nature of incitement of violence against the
government a few days before the general elections. 33 The nature of content written by
Applicant-1 is provocative and liable to incite hatred against public officials. Hence, the
prosecution of Applicant-1 is justified.
26
Krasulya v. Russia App No. 12365/03 (ECtHR, 22 May 2007); Jerusalem v. Austria App No. 26958/95
(ECtHR, 27 February 2001).
27
28
29
30
Competition Case, 22-23.
31
HRC, General Comment 27 (2 November 1999) UN Doc CCPR/C/21/Rev.1/Add.9 (General Comment 27)
para. 14; Marques v. Angola UN Doc CCPR/C/83/D/1128/2002 (HRC, 29 March 2005), Coleman v. Australia
UN Doc CCPR/C/87/D/1157/2003 (HRC, 10 August 2006).
32
Jersild v. Denmark App No. 15890/89 (ECtHR, 1 September 1994), para 31; De Haes and Gijsels v. Belgium
App No. 19983/92 (ECtHR, 24 February 1997) Para 37; Bladet Troms and Stensaas v. Norway [GC] App no.
21980/93 (ECtHR, 20 May 1999) para 58.
33
Shin v. Republic of Korea, UN Doc CCPR/C/80/D/926/2000 (2004) (HRC, 16 March 2004).

B. WHETHER OR NOT AMOSTRAS PROSECUTION OF BALLAYA UNDER THE ESA

VIOLATES INTERNATIONAL PRINCIPLES, INCLUDING
ARTICLE 19 UDHR
AND
ARTICLE 19 OF THE ICCPR?

[ 21] Applicant-1 has been charged under s 1 and s 3 of the ESA as she was found guilty by
competent court of being an organizer of the violent protest on August 1 in connection with
her column, An Open Letter to the Oppressors.
[ 22] It is hereby submitted that Ms. Ballayas act is beyond the ambit of protection
guaranteed by the Universal Freedom of Speech under Article 19 34 and 2035 of the UDHR
and Article 1936 and 2137 of the ICCPR.
[ 23] The Respondent submits that prosecution of Ms. Ballaya is justified pursuant to
restrictions provided under Article 19 (3) of ICCPR and via the application of Three-part
Test: (1) Prescribed by law; (2) In pursuit of legitimate aim and (3) Necessary in democratic
society.
1)
Prosecution was prescribed by law
[ 24] S 3, ESA indisputably criminalizes any political demonstration held within 30 days of
the pronounced general elections on August 5, if it seeks to propagate any extremist or
seditious message or has a tendency to incite violence or threaten the democratic process. 38
The Respondent submits that despite having knowledge of the aforementioned provision,
Applicant-1 self-opinionatedly accuses the Prime Minister and members of the Zasa sect of
corruption and human rights violations, terms the general elections as a sham and also calls
34
Art. 19, UDHR
35
Art. 20, UDHR
36
Art. 19, ICCPR
37
Art. 21, ICCPR
38

for a peaceful Day of Resistance on August 1. 39 Even if that were not to be believed,
calling a protest under the guise of it being peaceful on an issue as sensitive as the
upcoming general elections of the State is likely to incite violence or hatred against the
democratic government.
[ 25] The words of the Yona unity song, when interpreted hint towards the use of force to
achieve their aim. Incitement to violence is in excess of freedom of expression. Any
advocacy of national, racial or religious hatred that constitutes incitement to discrimination,
hostility or violence shall be prohibited by law.40
[ 26] Conviction was meted out for the publication of three articles containing passages
which espoused the intention to fight to the last drop of blood.41 The Court held that there had
been no violation of freedom of expression u/a. 10.42
2)
[ 27]
That the prosecution was in pursuit of a legitimate aim

The right of peaceful assembly and the right to freedom of association are not absolute
rights. A legitimate aim, namely the maintenance of national security and public safety is a
reasonable ground for restricting freedom of expression and freedom of assembly.43
[ 28] Applicant-1 is aware of Amostras unstable political situation, and the accompanying
facts which lead to the upcoming general elections. In such a precarious environment where a
part of the population is dissatisfied and aggrieved by the alleged discrimination of the
government, organizing a protest a few days before the elections under the guise of it being
39
40
Art 20, ICCPR.
41
zgr Gndem v. Turkey, App No. 23144/93 (ECtHR, 16 March 2000).
42
Srek (no.1) v. Turkey App No. 26682/95 (ECtHR, 8 July 1999).
43
HRC, General Comment 10 (1985) UN Doc CCPR/C/GC/10 (General Comment 10) para 4; J.R.T. and the
W.G. Party v. Canada UN Doc CCPR/C/OP/2 at 25 (HRC, 6 April 1983); Faurisson v. France UN Doc
CCPR/C/58/D/550/1993 (HRC, 8 November 1996); Zana v. Turkey App No. 18954/91 (ECtHR, 25 November
1997); Rassemblement Jurassien v. Switzerland, App No. 8191/78 (ECtHR, 10 October 1979). Coleman v.
Australia Comm No. 1157/2003 (ECtHR17 July 2006).

peaceful, which is also mostly likely to turn violent and also the resultant arson which
ensues in the form of setting ablaze of a Zasa religious building, attacking law enforcement
officials44, is indicative of Applicant-1s malafide intention.
[ 29] International Human Rights law only protects assemblies that are peaceful.45 However,
it should be noted that an assembly will be deemed peaceful as long as the participants
remain peaceful.46 The concept of a peaceful assembly excludes any assembly that involves
the use of force in any way, or events that plan to use force, threaten the use of force or incite
people to use force.47
[ 30] An assembly which has the object of committing acts of violence or where there are
clear indications of a likely disturbance of the peace or where the acts of violence has been
committed, such an assembly loses its status of a peaceful assembly.48
[ 31] However, the chanting of the very song by the attackers which is used by Applicant-1 in
her contentious column is suggestive of her association with them and her intention to
provoke the participants to act violently against the police authorities. Hence, Applicant-1 is
liable to be prosecuted.
44
45
UNHRC, Note by the Secretary-General transmitting the report of the SRSG on human rights defenders (5
September 2006) UN Doc A/61/312 (UNHRC September 2006 Report) para. 81.
46
Oya Ataman v. Turkey App no. 74552/01 (ECtHR, 29 November 2007).
47
Osmani and Others v. Former Yugoslavia Republic of Macedonia App no. 50841/99 (ECtHR, 11 October
2001); Oya Ataman v. Turkey App no. 74552/01 (ECtHR, 29 November 2007); Balik v. Turkey App no. 25/02
(ECtHR, 29 November 2007); Article 19, The Johannesburg Principles on National Security, Freedom of
Expression
and
Access
to
Information
(1996)
<https://www.article19.org/data/files/pdfs/standards/joburgprinciples.pdf> accessed 17 October 2016.
48
UNHRC, Report of the United Nations High Commissioner for Human Rights on Effective measures and
best practices to ensure the promotion and protection of human rights in the context of peaceful protests' (21
January 2013), UN doc A/HRC/22/28, 21 January 2013.

3)
Necessary in democratic society
[ 32] The protection of the right to freedom of peaceful assembly extends only to those
assemblies that are peaceful. In determining whether an assembly is protected under this
right, the peacefulness of an assembly should be presumed49, and a broad interpretation of the
term peaceful should be afforded 50 . Regard must be given to the manner in which the
assembly is held and to the intentions of the participants.
[ 33] The Court has declared that the severity of the penalty imposed on the applicant, in the
form of a sentence for four years and two months and to a fine, could not be regarded as
disproportionate to the legitimate aim pursued, namely the prevention of public incitement to
commit offences.51
[ 34] The press must not overstep the bounds set, inter alia, for the protection of the vital
interests of the State, such as the protection of national security or territorial integrity against
the threat of violence or the prevention of disorder or crime.52
[ 35] Prohibitions should only ever be imposed in response to a serious threat of violence and
disorder associated with a particular assembly.
53
Prosecution of Applicant-1 is not
unreasonable. The contentious protest was not held to be illegal at the time of
pronouncement, but, the entailing consequences of violent nature made it so; only when the
demonstrators turn violent and threaten the law and order situation, the protest is declared
illegal.
49
UNHRC, Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association
(21 May 2012) UN Doc A/HRC/20/27 (UNHRC May 2012 Report) para. 26; UNHRC, Report of the Special
Rapporteur on the rights to freedom of peaceful assembly and of association (24 April 2013) UN Doc
A/HRC/23/39 (UNHRC April 2013 Report) para. 50.
50
Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (Kehl am Rhein, Engel,
2005), 487.
51
Gndz v. Turkey App no. 35071/97 (ECtHR, 4 December 2003).
52
Ozgur Gundem v. Turkey App No. 23144/93 (ECtHR, 16 March 2000).
53
Makhmudov v. Russia App No. 35082/04 (ECtHR, 26 July 2007).
10

C.
WHETHER OR NOT AMOSTRA HAS JURISDICTION TO OBTAIN AND
ENFORCE THE CIVIL ORDER AGAINST SEESEY IN AMOSTRA AND SARRANTO?
[ 36] The SIA enables the state of Amostra to force the removal of illegal material via a Civil
court order. Respondent submits that it has the jurisdiction for enforcing a global takedown
order against SeeSey for removing the offensive content posted on its portal as this move is
in consonance with the [I] Principles of Jurisdiction: Territorial Principle [a], Protective
Principle [b] and Effect Doctrine or Passive Personality Principle [c] and the [II] Customs
set by Municipal Laws and Precedents.
[I] Principles of Jurisdiction:
[a] Territorial Principle
[ 37] A country should be able to prosecute for offences committed upon its soil since the
authorities of a state are responsible for the conduct of law and the maintenance of good order
within that state.54
[ 38] The Respondent submits that the state of Amostra has had an unstable political history,
has witnessed violence and threats.55 In view of such instability, a publication of material
which incites violence and hatred against the prevailing political scenario is bound to
exacerbate the law and order situation of the country. Since the Applicant-1 was herself a
citizen of Amostra and Applicant-2 was operated by users of the state, the civil court order is
legally valid in view of the Territorial Principle.
54
Congo v. Belgium (ICJ, 14 February 2002) pp. 3, 36; 128 ILR, pp. 60, 92; Holmes v. Bangladesh Binani
Corporation [1989] 1 AC 1112, 1137; 87 ILR, pp. 365, 3801, Ex parte Pinochet (No. 3) [2000] 1 AC 147, 188;
119 ILR, p. 139.
55
Competition Case, 1, 12.
11

[ 39] Presence of SeeSales, a subsidiary of SeeSey, in the territorial bounds of Amostra

further substantiates the validity of Amostran jurisdiction upon SeeSey. In a case56, it was
held that the municipal courts will have jurisdiction to direct the Google search which is
operated by Google, Inc., a US company on the ground that Googles Spanish office which is
involved in promoting, in Spain, the sale of Google advertising.
[b] Protective Principle
[ 40] When an act is committed outside the territory of the concerned state, the protective
principle allows the state to claim jurisdiction57 in order to defend its citizenry against the
offences committed by residents of another country. In re Urios58, it is provided that states
may exercise jurisdiction over aliens who have committed an act abroad which is deemed
prejudicial to the security of the particular state concerned.
[ 41] Although Applicant-1 is a resident of Sarranto, but, her column, which was published
on The Times SeeSay account, was accessible to the citizens of not only Amostra, but, also
those of Sarranto and any other country. Resultantly, the contentious newspaper column of
Applicant-1 coupled with the sensitive political situation in Amostra has every chance of
disturbing the law and order situation of the already shaken country. Thus, by virtue of the
abovementioned definition of the Protective Principle, Amostra has jurisdiction to obtain the
civil order against SeeSay in its own territory as well as Sarranto.
[c] Effect Doctrine or Passive Personality Principle
[ 42] The Respondent submits that in view of the politically unstable situation in Amostra,
the civil takedown order must not only be state bound but be globally enforced in view of the
56
Google Spain SL, Google Inc. v. Agencia Espaola de Proteccin de Datos (AEPD), Mario Costeja Gonzlez
C-131/12 (CJEU, 13 May 2014) (Google Spain SL).
57
Joyce v. Director of Public Prosecutions, [1946] AC 347; 15 AD, p. 91; See, with regard to US practice,
Rocha v. US (1961) 288 F.2d 545; US v. Pizzarusso (1968) 388 F.2d 8 and US v. Layton (1981) 509 F.Supp.
212.
58
(1920) 1AD 107, following Art. 694(1) of the French Code of Criminal Procedure, 2000.
12

Effect Doctrine or Passive Personality Principle, which gives jurisdiction to the state where
the effects of the offensive activity are realized.
[ 43] The effects test for jurisdiction was first articulated in Alcoa59, wherein a state was
authorized to exercise jurisdiction over individuals and activities occurring outside the states
territorial limits because of illegal or unacceptable consequences within the state. 60 It was
held that locus of the action will be where the effect has ensued irrespective of the place
where act was committed. 61 In the Arrest Warrant case, 62 it was noted that the passive
personality principle today meets with relatively little opposition.63
[ 44] It was held that the arrangements that are implemented, which intend to have an effect
within the Community, would be subject to the jurisdiction of the Community, irrespective of
the nationality of the companies concerned. 64
[ 45] The German antitrust statute explicitly applies to all restraints of competition which
have an effect within the territorial scope of the statute, even when the restraints occur
outside the statute's territorial scope.65 The effects doctrine brings individuals or companies
within the territorial power of the state by focusing on the location of the effects of their
59
United States v. Aluminum Co. of America, 148 F.2d 416, 443 (2nd Cir. 1945); ICI v. Commission Case 48/69
(CJEU,14 July 1972)United States v. Watchmakers of Switzerland Information Center, Inc., 1963 Trade Cas.
70600 (S.D,N.Y. 1962).
60
Continental Ore Co. v. Union Carbide and Carbon Corp. (1962) 370 U.S. 690, 704 ; In re Uranium Antitrust
Litig.,(1980) 617 F.2d 1248, 1253-54; Rivard v. United States, (1967) 375 F.2d 882, 886; Zenith Radio Corp. v.
Matsushita Elec. Indus. Co., (1980) 494 F. Supp. 1161, 1177.
61
Strassheim v. Dailey, (1911) 221 U.S. 280; Notably in United States v. Bowman, (1922) 260 U.S. 94, 98;
Steele v. Bulova Watch Co., (1952) 344 U.S. 280; Skiriotes v. Florida, (1941) 313 U.S. 69 ; Blackmer v. United
States,(1932) 284 U.S. 421 .
62
Congo v. Belgium, [2002] ICJ 1, pp. 3, 63, 767;
63
Compute Fraud and Abuse Act (U.S.) 18 USC s 1030 (e)(2)(b); Patriot Act (U.S.); Hostage Taking (U.S.) 18
USC s 1203, Crime Control Act, 1984; Computer Misuse Act, 1990 (U.K.) Section 4-5; Danish Penal Code
(Denmark) Art. 9a; Code of Criminal Procedure (France) Art. 7, 689(1); Third US Restatement of Foreign
Relations Law (U.S.) s 402. See also US v. Benitez (1984) 741 F.2d 1312, 1316; US v. Yunis (No. 2), (1989) 867
F.2d 617.
64
65
Ahlstr om OY v. Commission [1988] 4 CMLR 901.

Act against Restraints of Competition, 2013 (Germany) s 98(2).
13

conduct. The location of the company or the activities in question is irrelevant for
jurisdictional purposes under this doctrine.66
[ 46] The Court 67 acknowledged that besides the important benefits which can be derived
from the Internet in the exercise of freedom of expression, it is also mindful of the liability
for defamatory or other types of unlawful speech in principle. 68 On similar grounds,69 it was
held that Internet news portals had to, in principle, assume duties and responsibilities.
[ 47] Harvard Research in International Law, Jurisdiction with Respect to Crimes, 70
mentions of expanding extraterritorial jurisdiction to include offenses committed abroad,
even by aliens, if the offense threatened the security, integrity or independence of the state
seeking to prosecute.
[ 48] Taking into account the quick sharing of the Applicant-1s newspaper column among
users of Applicant-2, 71 their resultant declaration to carry knives and other available
weapons, 72 and Amostras history of domestic turbulence, the enforcement of a global
takedown the civil order is justified.
[II] Customs set by Municipal Laws and Precedents:
[ 49] Amostra has jurisdiction to obtain the order of global takedown of the contentious
content on the website of Applicant-2 by virtue of the customs governing the municipal laws
66
Law and Contemporary Problems, 1988: Extraterritoriaal Subsidiary Jurisdiction

http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3904&context=lcp).
67
(Access at:
Delfi AS v. Estonia App no 40287/98 (ECtHR, 16 June 2015) (Delfi June 2015).
68
Also see Ahmet Yldrm v. Turkey App no 3111/10 (ECtHR, 18 December 2012) (Ahmet) Para 48; Times
Newspapers Ltd (nos. 1 and 2) v. the United Kingdom App nos. 3002/03 and 23676/03 (ECtHR, 10 June 2009)
Para 27.
69
Magyar Tartalomszolgltatk Egyeslete and Index.hu Zrt v. Hungary App No. 22947/13 (ECHR, 2 February
2016).
70
29 Am. J. INT'L L. 443, 445 (Supp. 1935).
71
Competitions Case, 19.
72
14

and case precedents of various countries. For instance, in United States of America, a foreign
ISP must at least have sufficient minimum contacts for it to be subject to U.S. law, and the
Digital Millennium Copyright Act (DMCA). 73 Generally, such contacts require purposeful
interactions with U.S. citizens and commerce, such as marketing its services in the U.S. 74 It
must also be reasonable to bring the ISP under U.S. jurisdiction, based on multiple
factors.75
[ 50] It was held that in a case where more than one jurisdictions apply to the same matter,
jurisdiction of that state would be applicable which have more significant factors in its
favour. 76 It was held that the AEPD, a Spanish authority can direct Google, a US based
internet platform to remove the articles from its website. 77
[ 51] It is not required, in particular, that the activity concerned be directed to the member
state in which the court seised is situated.78 It was held79 that state never lacked international
and local jurisdiction, following the judgment in Coty Germany GmbH v. First Note
Perfumes NV80, observed that it is clear from the Courts case law that the expression place
where the harmful event occurred or may occur in Article 5(3) of Regulation No 44/200181
is intended to cover both the place where the damage occurred and the place of the event
giving rise to it.
73
Intl Shoe Co. v. Wash. (1945) 326 U.S. 310, 316.
74
Asahi Metal Indus. v. Superior Court (1987) 480 U.S. 102, 112.
75
World-Wide Volkswagen Corp. v. Woodson (1980) 444 U.S. 286, 292.
76
Lauritzen v. Larsen, 345 U.S. 571 (1953).
77
Google Spain SL, Google Inc. v. Agencia Espaola de Proteccin de Datos (AEPD), Mario Costeja Gonzlez.
78
Peter Pinckney v. KDG Mediatech AG C170/12 (CJEU, 3 October 2013) para 42.
79
Pez Hejduk v. EnergieAgentur.NRW GmbH. C441/13 (CJEU, 22 January 2015).
80
Coty Germany GmbH v. First Note Perfumes NV C360/12 (CJEU, 5 June 2014) para 46.
81
Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters (Brussels I).
15

[ 52] An Austrian was sued before an Austrian court by a German competitor who charged
him with acts of unfair competition committed in Yugoslavia. These acts were forbidden
under Austrian law but not under the law of Yugoslavia. Accordingly, the forum denied that
there was a jurisdictional basis for the enforcement of its legislation.82
[ 53] Applicant-1s writing had a worldwide outreach, which justifies the jurisdiction of
Amostra to obtain a global takedown order of the offensive matter. Since the newspaper
column authored by the Applicant-1 was read not only by citizens of Amostra but also of
Sarranto83 and could also be accessed on The Times website itself by users, no matter where
they are located,84 its effect was profound and global. Apart from the citizens of Amostra, its
influence was also on the Amostrans residing in other countries as well as the residents of
other countries alike.
82
O.G.H., June 11, 1930, SZ XII/142 (accessed at Arthur Lenhoff, International Law and Rules on International
Jurisdiction, 50 Cornell L. Rev. 5 (1964) Available at: http://scholarship.law.cornell.edu/clr/vol50/iss1/2).
83
84
16

D. WHETHER
OR
NOT AMOSTRAS
CIVIL ORDER AGAINST
INTERNATIONAL PRINCIPLES, INCLUDING
ARTICLE 19
SEESEY
OF
VIOLATES
UDHR
AND
ARTICLE 19 OF THE ICCPR?
[ 54] The right to freedom of expression is not an absolute right. This freedom if misused on
the internet can be disastrous. The civil order against SeeSay (hereinafter referred to as
Applicant-2) for removal of offensive content in relation to the column written by Applicant1 does not violate international principles, including Art. 1985 by being outside the ambit of
the protected right to freedom of speech and expression.
A.
The column was a form of hate speech and thus the order of its removal does not
amount to violation of the international principles.

[ 55] The Respondent submits that where the remarks can incite violence against an
individual or a public official or a sector of the population, the State authorities enjoy a wider
margin for an interference with freedom of expression.86. Such restrictions upon the content
of speech are allowed when their imposition outweighs social order and morality. 87
[ 56] The impugned column was a form of hate speech, which was the written material that
advocates, promotes or incites hatred, discrimination or violence, against any individual or
group of individuals. 88 It also violates the norm of customary international law which
prohibits discrimination.89
85
UDHR and ICCPR
86
Baskaya & Okcuoglu v. Turkey App No. 23536/94 and 24408/94 (ECtHR, 8 July 1999).
87
Id. at 572.
88
See Article 2 paragraph 1 of the Additional Protocol.
89
Prosecutor v. Nahimana Judgment (ICTR-99-52-A) (28 November 2007).
17

[ 57] An expression to be hate speech must pass a six-part test90:

a) Context: The context places key issues and elements of speech within the social and
political context prevalent when the speech was made and disseminated. 91 The
column is published at the time when the State is amidst protests and skirmishes and
the general elections are less than a month away.92
b) Writer: An analysis of the person requires a focus on the effect on the audience,
considering issues such as the kind of work undertaken by them previously, making
audience more vulnerable to incitement. 93 Applicant-1 is a famous political blogger
widely regarded as an insightful and a bold writer94 making her writings capable of
affecting her audience.
c) Intent: An analysis of the tone and expression of the speech and the circumstances in
which it was disseminated,95 the underlying objectives pursued by the writer to incite
among the public uproar and unrest on religious and political grounds is well within
the ambit of hate speech.96 The intent of the applicant is central to determine the need
for required restriction, which is assessed by referring to the content 97 of the
90
Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes
incitement to discrimination, hostility or violence <access at:
http://www.ohchr.org/Documents/Issues/Opinion/SeminarRabat/Rabat_draft_outcome.pdf> last accessed on
19/10/2016.
91
Toby Mendel, Study on International Standards Relating to Incitement to Genocide or Racial Hatred (2006).
92
Competition case para 1,18
93
See Susan Benesh, Dangerous Speech: A Proposal To Tackle Violence, 2011.
94
Competition case
95
Mugesera v. Canada [2005] 2 S.C.R. 91, 2005 SCC 39; Incal v. Turkey App No. 22678/93 (ECtHR, 9 June
1998); Virginia v. Black et al (2003) 538 U.S. 343; See ECRI Report on Poland, 2010, available at:
www.coe.int/t/dghl/monitoring/ecri/countrybycountry/poland/POL-CbC-IV-2010-018-ENG.pdf> last accessed
on 20/10/2016.
96
Jersild v. Denmark App No. 15890/89 (ECtHR, September 1994); Lehideux and Isorni v. France App No.
24662/94 (ECtHR, 23 September 1998); Aksu v. Turkey App nos. 4149/04 and 41029/04 (ECtHR, 15 March
2012).
18

expression and the context98 in which it is used. The column by Applicant-1 mentions
grave accusations against head of the state without any evidence and even calls the
democratic elections to be held as a sham.99
d) Content: The focus is on the material advocated, audience that was actually targeted
to incite, the degree to which the content was provocative. 100 The content of the
column is provocative in the sense that after calling for a day of resistance it mentions
We are not afraid to fight, not afraid to die.101
e) Extent & magnitude of the expression: The public nature of the expression, the means
of dissemination and magnitude of the expression are the vital factors. The column is
disseminated through a popular social platform which increases the magnitude of the
expression.
f) Likelihood of harm (imminence): The speech has to be understood by its audience to
be a call to acts of discrimination, violence or hostility, 102 as in the present case, the
speakers call for resistance and the targeted group suffered hostilities103 in the form
of the arson attacks etc.
97
Erbakan v. Turkey App no. 35071/97 (ECtHR, 14 June 2004) para 55; Pedersen and Baadsgaard v. Denmark
App No. 49017/99 (ECtHR, 19 June 2006) para 76.
98
Erbakan v. Turkey App no. 35071/97 (ECtHR, 14 June 2004) para 64; Jersild v. Denmark App No. 15890/89
(ECtHR, September 1994) para 31; Srek v. Turkey App No. 26682/95 (ECtHR, 08 July 1999) para 63; Seurot
v. France App No. 57383/00 (ECtHR, 18 May 2004); Karatas v. Turkey App No. 23168/94 (ECtHR, 8 July
1999) para 29; VereinigungBildenderKnstler v. Austria App no. 68354/01 (ECtHR, 25 January 2007) para 33.
99
Competition case para 18
100
Ergin v. Turkey App No. 47533/99 (ECtHR, 4 May 2006).
101
Competition case para 21
102
Incal v. Turkey App No. 22678/93 (ECtHR, 9 June 1998); Aksu v. Turkey App nos. 4149/04 and 41029/04
(ECtHR, 15 March 2012).
103
Fret v. Belgium App No. 15615/07 (ECtHR, 16 July 2009); Le Pen v. France App No. 18788/09 (ECtHR,
20 April 2010).
19

[ 58] It is submitted that the aim of the offending actions have to be spread violence or hatred
to undermine the nations democratic and pluralistic political system. 104 Thus, the article in
question qualifies to be hate speech.
[ 59] The ICCPRs provisions105 are interplay between the principle of freedom of expression
and such limitations and restrictions which determines the actual scope of the individual's
right."106 Moreover, Art. 20(2)107 provide limitations on Art. 19,108 requiring states to outlaw
any advocacy of national, racial or religious hatred that constitutes incitement to
discrimination, hostility or violence. 109 Similarly the ECHR, 110 ACHR 111 and African
Charter112 also place restrictions on the right to freedom of expression.
[ 60] The purpose behind enforcing the civil order is not to curtail the freedom of expression
altogether, but, to regulate publication of its content in view of Amostras peculiar and
sensitive political situation. Restrictions on freedom of expression through the regulation of
content on the internet are imposed in a way that makes clear its sole purpose is to protect
104
Lehideux and Isorni v. France App No. 24662/94 (ECtHR, 23 September 1998) para 2.
105
Alon Harel, What Demands Are Rights? An Investigation into the Relation between Rights and Reasons,
113.
106
UN Human Rights Committee, General Comment No. 10: Freedom of expression (Art. 19) : . 29/06/1983.
107
ICCPR; See also UN Economic and Social Council, UN Sub-Commission on Prevention of Discrimination
and Protection of Minorities, Siracusa Principles on the Limitation and Derogation of Provisions in the ICCPR
(1984) Annex, UN Doc E/CN 4/1984/4.
108
ICCPR and UDHR.
109
ICCPR art 20.
110
ECHR art. 10(2).
111
Art. 13 (ACHR) American Convention on Human Rights, Pact of San Jose, Costa Rica (B-32), adopted 22
November 1969, entered into force 18 July 1978; available at http://www.oas.org/dil/treaties_B32_American_Convention_on_Human_Rights.pdf General Comment 11: Prohibition of propaganda for war and
inciting national, racial or religious hatred (Art. 20), 29 July 1983.
112
Id. art. 28.
20

individuals holding specific beliefs or opinions, and not to protect belief systems from
criticism.113
B.
The content and the comments are covered under the restrictions provided by Art.
19(3).
[ 61] While states have a duty to regulate its citizens conduct, social media platforms also
shoulder certain duties over their users.114 The civil order against Applicant-2 is justified as
international law permits prohibitions on hate speech.115 Art. 19(3) of the ICCPR permits the
right to be restricted116 for the protection of national security or public order, 117 which must
fulfil a Three-part Test that the restriction must be:
a) Provided by law: It is so when it is formulated with sufficient precision to enable an
individual to regulate his or her conduct accordingly. The SIA is sufficiently precise as it is
foreseeable that the failure of Applicant-2 to comply with C of the SIA would attract
liability in the form of a civil order to remove and post an apology for the impugned content
containing extremist statements.
The Respondent submits that since SeeSay is the most popular source of political
discussion in Amostra118 and there was a risk that the post and the accompanying comments
113
Jersild v. Denmark App No. 15890/89 (ECtHR, September 1994).
114
UNHRC, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of
Opinion and Expression (22 May 2015) UN Doc A/HRC/29/32 (UNHRC May 2015 Report) para 54; Delfi
AS v. Estonia App no 40287/98 (ECtHR, 16 June 2015) (Delfi June 2015) para 111.
115
Mariana Mello, Hagan v. Australia: A Sign of the Emerging Notion of Hate Speech in Customary
International law, see also John C. Knechtle, When to Regulate Hate Speech, 110 PENN ST. L. REv. 539, 542
(2006)Douglas- Scott
116
Malcolm Ross v. Canada UN Doc CCPR/C/70/D/736/1997 (HRC, 18 October 2000); Herrera-Ulloa v.

Costa Rica, (IACtHR, 2 July 2004) Para. 120; Francisco Martorell v. Chile (IACtHR, 3 May 1996); IACHR,
Report of the Special Rapporteur for Freedom of Expression (2009) OEA/SER L/V/II Doc 51 Para.68.
117
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).
118
Delfi AS v. Estonia App no 64569/09 (ECtHR, 10 October 2013) (Delfi October 2013) para 72; Delfi AS v.
Estonia App no 40287/98 (ECtHR, 16 June 2015) (Delfi June 2015) para 129.
21

can go beyond the boundaries of acceptable speech, it should have sought legal advice on
the scope of C, SIA.
b) Must pursue a legitimate aim: All forms of expression which spread, incite, promote or
justify hatred based on intolerance can be sanctioned or prevented, provided that any
restrictions or penalties imposed are proportionate to the legitimate aim pursued.
Interferences with the right must pursue a legitimate aim u/a 19(3) (a) and (b) of the
ICCPR, namely protecting public order and national security.
Holding Applicant-2 liable for hosting hate speech content with the aim of protecting public
order and national security was jeopardised because of extensive spread of communications
facilitated by it and the arson attacks.119 The greatest increase in online hate speech has
occurred on social media.120 This is evident in Amostra as it is only after the online hosting
of the column by Applicant-2 that the column is quickly shared and viewed by users in both
Amostra and Sarranto, accompanied with comments posted in large number by Yona sect
threatening the use of weapons.121
119
Roy Balleste, Persuasions and Exhortations: Acknowledging Internet Governance and Human Dignity for
All (2011) 38 Syracuse Journal of International Law and Commerce 227, 254; Batrice Farano, Internet
Intermediaries Liability for Copyright and Trademark Infringement: Reconciling the EU and US Approaches
(2012) Transatlantic Technology Law Forum Working Paper no 14, 146; Peter Yu, Region Codes and the
Territorial Mess (2012) 30 Cardozo Arts and Entertainment Law Journal 187, 229; Ira Nathenson, SuperIntermediaries, Code, Human Rights (2013) 8 Intercultural Human Rights Law Review 19, 81; Molly Land,
Toward an International Law of the Internet (2013) 54 Harvard International Law Journal 393, 445. See also
UNESCO, Background Note: Case Studies on the Role of Internet Intermediaries in Promoting Freedom of
Expression on Internet (12 August 2013)
<http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/CI/CI/pdf/news/background_note_cs_role_of_inter
net_int ermediaries.pdf> accessed 17 October 2016.
120
Danielle Citron, Intermediaries and Hate Speech: Fostering Digital Citizenship for our Information Age
(2011) 91 Boston University Law Review 1435, 1437; Inter-Parliamentary Coalition for Combating AntiSemitism, Report and Recommendations of Yuli Edelstein, Speaker of the Knesset, and Christopher Wolf,
Chair, National Civil Rights Committee of the Anti-Defamation League, Co-Chairs of the Task Force on
Internet Hate of the Inter-Parliamentary Coalition for Combating Anti-Semitism (29 May 2013)
<http://www.adl.org/assets/pdf/press-center/ICCA-Report.pdf> accessed 21 September 2016.
121
Competition Case, 19-20.
22

c) Tests of necessity and proportionality: There must be a pressing social need for the
restriction & it must establish a direct and immediate connection between the expression
and the protected interest. Proportionality means that the least restrictive measure must be
applied as against more restriction one.122
The civil order is necessary in view of the wide user base of Applicant-2 and the
consequent spread of the column. Amostras sensitive political situation and upcoming
elections calls for maintenance of public order, which is disrupted by the threat of violence
in the form of comments posted underneath the column uploaded by Applicant-2.
C.
That SeeSay cannot escape its liability on the pretext of third party content.
[ 62] One of the major principles for regulation of hate speech on the internet is the harm
principle. Liability or responsibility is also the bond of necessity existing between the
wrongdoer and the remedy of the wrong which may be either civil/ criminal depending upon
the purpose with which it is imposed by law.123However, the State not only has the power but
also the responsibility to prevent harm to members of its society.124
[ 63] Hate speech can stay online for a long time in different formats across multiple
platforms, which can be linked repeatedly. It is itinerant; even when the impugned content is
removed in Amostra, it may find expression elsewhere globally. Also, the longer the content
stays available, the more damage it can inflict on the victims, and empowers the perpetrators.
[ 64] In Demenuk v. Dhadwal, 125 the Court said intermediary will be liable if it fails to
exercise reasonable care to ensure that third-party defamatory comments are promptly taken
122
Shin v. Republic of Korea UN Doc CCPR/C/80/D/926/2000 (HRC, 16 March 2004); Bodrozic v. Serbia and
Montenegro UN Doc CCPR/C/85/D/1180/2003 (HRC, 31 October 2005).
123
P.J.Fitzgerald., Salmond on Jurisprudence, 12th Edition, 1966, Universal Law Publishing Co. Pvt. Ltd,
Delhi, 349.
124
General Comment 11: Prohibition of propaganda for war and inciting national, racial or religious hatred (Art.
20), 29 July 1983
125
2013 BCSC 2111.
23

down from areas that it directly controls. When liability was imposed on a major news portal
for defamatory comments posted under one of its news stories, it was held to be no violation
of Art. 10, in order to protect another persons reputation.126 The restriction was also only to a
degree proportionate to the circumstances.
[ 65] Art. 10 127 , does not guarantee unlimited freedom of expression, especially when
information published by the press is likely to have serious repercussions on the reputation
and rights of individuals and also adverse impact on the national security. The national
authorities must give reasonable reasons, which in present case have been duly complied
with.128
[ 66] The impugned column would have a continued tendency for inciting protest or violence
as on the Day of Resistance if it is not removed. In view of the concept of third party
liability, the Respondent submits that Applicant-2 cannot avoid the civil order for hosting the
offensive content.
126
Delfi AS v. Estonia App no 64569/09 (ECtHR, 10 October 2013) (Delfi October 2013).
127
ECHR.
128
Fatullayev v. Azerbaijan App no. 40984/07 (ECtHR, 22 April 2010) para 100.
24

PRAYER
For the foregoing reasons, the respondnet respectfully request this Honourable Court to
adjudge and declare:
A. That Amostras prosecution of Ballaya under the Stability and Integrity Act of 2014
(SIA) does not violate international principles, including Article 19 of UDHR and Article
19 of the ICCPR.
B. That Amostras prosecution of Ms. Ballaya under the Election Safety Act of 2016
(ESA) does not violate international principles, including Article 19 UDHR and Article 19
of the ICCPR.
C. That Amostra has jurisdiction to obtain and enforce the civil order against SeeSey in
Amostra and Sarranto.
D. That Amostras civil order against SeeSey does not violate international principles,
including Article 19 of UDHR and Article 19 of the ICCPR.
Respectfully submitted this nineteenth day of November
216A
Counsel for the Respondent
25

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Memorial for R | TC: 216R

PRICE MEDIA LAW MOOT COURT COMPETITION, 2016/17

Ballaya and SeeSey

THE HONOURABLE PANEL OF

MEMORAMDUM ON BEHALF OF THE RESPONDENT

MEMORIAL FOR RESPONDENT

STATEMENT OF RELEVANT FACTS

MEMORIAL FOR RESPONDENT

American Convention on Human Rights

African Commission on Human and

Anti-Terrorism & Extremism Law of 2012

Committee on the Elimination of Racial

Court of Justice of the European Union

Convention for the Protection of Human

European Court of Human Rights

Human Rights Committee

Inter-American Court of Human Rights

International Covenant on Civil and Political

International Criminal Tribunal for Rwanda

United Nations Office of the High

MEMORIAL FOR RESPONDENT

Supreme Court of the United States of

Universal Declaration of Human Rights

United Nations General Assembly

United Nations Human Rights Council

United States of America

Election Safety Act

Stability and Integrity Act

MEMORIAL FOR RESPONDENT

MEMORIAL FOR RESPONDENT

MEMORIAL FOR RESPONDENT

Makhmudov v. Russia App No. 35082/04 (ECtHR, 26 July 2007). ........................................... 10

MEMORIAL FOR RESPONDENT

Blackmer v. United States,(1932) 284 U.S. 421 ......................................................................... 13

MEMORIAL FOR RESPONDENT

Malcolm Ross v. Canada UN Doc CCPR/C/70/D/736/1997 (HRC, 18 October 2000) ........ 3, 21

CASES FROM OTHER COURTS AND INTERNATIONAL TRIBUNALS

MEMORIAL FOR RESPONDENT

MEMORIAL FOR RESPONDENT

MEMORIAL FOR RESPONDENT

and Contemporary Problems, 1988: Extraterritoriaal Subsidiary Jurisdiction ........................... 14

MEMORIAL FOR RESPONDENT

P.J.Fitzgerald., Salmond on Jurisprudence, 12th Edition, 1966, Universal Law Publishing

MEMORIAL FOR RESPONDENT

UNESCO, Background Note: Case Studies on the Role of Internet Intermediaries in

MEMORIAL FOR RESPONDENT

STATEMENT OF RELEVANT FACTS

Previously in 2014, after a protest outside of Parliament led to significant destruction of

MEMORIAL FOR RESPONDENT

SeeSay and Its Presence in Amostra

MEMORIAL FOR RESPONDENT

MEMORIAL FOR RESPONDENT

MEMORIAL FOR RESPONDENT

MEMORIAL FOR RESPONDENT

MEMORIAL FOR RESPONDENT

MEMORIAL FOR RESPONDENT

MEMORIAL FOR RESPONDENT

D. The right to freedom of expression is inclusive of the right to disseminate information

MEMORIAL FOR RESPONDENT

SIA VIOLATES INTERNATIONAL PRINCIPLES, INCLUDING ARTICLE 19 OF

It is most humbly submitted that Amostras prosecution of Applicant-1, Ms. Ballaya

Test1, which has been explained hereinunder:

That the prosecution is provided by law.

That the prosecution pursues a legitimate aim.