Professional Documents
Culture Documents
(APPLICANTS)
v.
STATE OF CABENGO
(RESPONDENT)
TEAM NO. 9
Words:5000
ii
TABLE OF CONTENTS
PG.
LIST OF ABBREVIATIONS………………………………………………iii
LIST OF SOURCES/AUTHORITIES……………………………………..v
ARTICLES REFERRED……………………………………………vi
MISCELLANEOUS DOCUMENTS……………………………….viii
LIST OF CASES…………………………………………………….ix
QUESTIONS PRESENTED………………………………………………….xii
SUMMARY OF ARGUMENTS………………………………………….…xx
STATEMENT OF JURISDICTION……………………………………….…..xxii
ARGUMENTS………………………………………………………………. .1-22
SUBMISSIONS.....................................................................................................23
iii
LIST OF ABBREVIATIONS
& - And
§ - Section
¶ - Paragraph
Art- Articles
Cf.- Conference
Cir- Circuit
Co.- Company
Doc.- Document
e.g-. Example
Ed.- Edition
Id- Ibid
n.- Note
No.- Number
p. - Page
pp. - Pages
Res.- Resolution
Supp.- Supplement
American Convention on Human Rights, O.A.S.Treaty Series No. 36, 1144 U.N.T.S.
123, entered into force July 18, 1978, reprinted in Basic Documents Pertaining to
Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992)
African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5
(Banjul, June 27, 1981; entered into force October 21, 1986)
International Covenant on Civil and Political Rights (ICCPR) Adopted and opened for
signature, ratification and accession by GA Res. 2200A (XXI), 16 December 1966 entry
into force 23 March 1976
BOOKS REFERRED
Francisco Forrest Martin et al, International Human Rights Law & Practice : Cases,
Treaties and Material, Kluwer Law International, 1997
Eric Barendt, Freedom of Speech 2nd Ed. (Oxford; Oxford University Press)
Chris Reed, Internet Law 2nd Ed. (Cambridge; Cambridge University Press)
I.A. Shearer, Starke’s International Law 11th Ed. (Oxford; Oxford University Press)
James Michael, Privacy and Human Rights ( England: Darmount ; Unesco publication)
Malcolm N. Shaw, International Law 5th Ed. (Cambridge; Cambridge University Press
2003)
D.J. Harris, Law of the European Convention on Human Rights 376, 414 (1995)
ARTICLES REFERRED
Lee C. Bollinger & Geoffrey R. Stone, Eternally Vigilant: Free Speech in the Modern
Era, 113-119 (University of Chicago 2002)
Lynn W. Hartman, Project Standards Governing the News: Their Use, Their Character,
and Their Legal Implications, 72 Iowa L.Rev. 637, 679-80 (1987)
Michael Isikoff & John Barry, Gitmo: SouthCom Showdown, Newsweek, May 9, 2005
vii
Patricia Wilhelm, The Protection of Sources; The Media: Ways to Freedom, UNESCO
Courier, Sept. 1990, at p. 16
Richard Harwood, Defending the Indefensible, Wash. Post, June 30, 1991, at C6
(newspaper)
Robert J. Sheran & Barbara S. Isaacman, Do We Want a Responsible Press?: A Call for
the Creation of Self-Regulatory Mechanisms, 8 Wm Mitchell L.Rev. 1, 97-99 (1982)
Sheran & Isaacman, Hartman, at 638, 695-99 (reprinting codes of ASNE and SPJ
Bruce E. Fein, National Security and The First Amendment: Article: Access to
Classified Information: Constitutional and Statutory Dimensions 26 William and
Claudio Grossman , The 2000 Goodwin Seminar Article & Essay : Freedom of
Expression In The Inter-American System For The Protection of Human Rights, ILSA
Journal of International and Comparative Law Summer, 2001
John Jeffries, Rethinking Prior Restraint, 92 Yale Law Journal 409, (1983)
MISCELLANEOUS DOCUMENTS
LIST OF CASES
OTHER CASES:
Derbyshire Country Council V. Times newspaper [1993] AC 534, 547
Reynolds v. Times Newspapers [2001] 2 AC 127
Tristán Donoso v. Panamá Judgment of January 27, 2009
Sim v. Stretch(1936) 52 TLR 669
New York Times Co.v. Sullivan, 376 US 254 (1964)
Fraser v. Evans, [1969] 1 All ER 8, 10
Near v. Minnesota, 283 US 697 (1931)
Sheikh Muhammad Rashid v. Majid Nizami, Editor in Chief the Nation Nawa-e-Waqt, Lahore
and Another PLD 2002 Supreme Court 514
Schwarz v. Salt Lake Tribune, May 5, 2005 UT APP 206
xii
QUESTIONS PRESENTED
1. Whether the requirement that all broadcasts, including online broadcasts, be licensed and pre-
expression?
3. Whether „La Semaine Cabengaine‟ has committed breach of confidence is liable to pay
damages?
4. Whether qualified privilege covers interventions from the gallery during a debate?
5. Whether „La Semaine Cabengaine‟ is liable to pay defamation damages for reporting the
debate proceedings?
Cabengo is a former French colony which became independent in the 1960s. More that half the
population are living on less than one US dollar a day, and one in 40 adults are HIV-positive.
Since 2003, the World Bank‟s International Development Association and the International
Monetary Fund have granted access to interim debt relief to Cabengo under the Heavily Indebted
Poor Countries Initiative. This debt relief is contingent upon financial transparency and
The country is presently governed, after a controversial but ultimately accepted ballot, by the
Cabengon Socialist Party, led by President Pierre Pontneuf. His party came to power with a
manifesto to build a new school in each of the 12 départements of the country and four state-of-
the-art hospitals. Three such hospitals have already been built, and proudly exhibited to
international visitors.
Cabengo is a member of the United Nations and has ratified the International Convention on
Civil and Political Rights. Cabengo‟s basic law guarantees the right to freedom of expression and
to hold opinions and impart information and ideas without interference by a public authority,
subject to such restrictions that are prescribed by law and are necessary in a democratic society.
Fair and accurate reporting of judicial proceedings and of parliamentary proceedings is protected
by qualified privilege.
xiv
Media in Cabengo:
Most of Cabengons take their daily news from the government-licensed television station, the
two government-licensed radio stations and the government-owned newspaper. The oligarchy of
rich Cabengons, about 2.5% of the population, access their news online or by subscription from
the international media. There are two dissentient media voices: „La Semaine Cabengaine‟,
which favours the opposition (the Cabengon Liberal Party) and „The Citizen‟, which circulates
principally in the border area between Cabengo and Poto, but is often recirculated throughout the
Recently „The Citizen‟ which has no office or assets in Cabengo wrote an editorial suggesting, in
heavily allusive terms, that President Pontneuf was carrying the HIV virus and being treated for
it by anti-retroviral drugs smuggled from Poto. This rumour has spread through most levels of
Cabengon society, to the point where President Pontneuf issued a public denial. The basis of the
rumour was the statement by a nursing source in Poto to a „Citizen‟ journalist, Bernadette Abloh,
that the President‟s wife had regularly been seen to attend at a specialist hospital in Poto for the
treatment of HIV and other infectious diseases and to uplift a small parcel on each occasion. Ms
Abloh, intrigued but considering that a number of other common sub-Saharan diseases were
treated at the same clinic, pressed the source to find prescriptions or other documentary evidence
that President Pontneuf was being treated for HIV at the clinic. The source, on payment of
money, produced two medical files. According to them, the President had been tested for HIV
and found to be HIV-negative. However, he was found to be carrying a gene for sickle-cell
anaemia. The President‟s wife‟s file disclosed her to be carrying the HIV virus and, moreover, to
The Poto „Citizen‟ printed both diagnoses, vaunted the superior credentials of the Poto hospital,
attacked the President for “hypocrisy” in having his own family treated there with retrovirals
whilst denying effective drugs to his fellow country people, questioned his physical and moral
fitness to govern and hinted that his wife had been unfaithful.
„La Semaine Cabengaine‟ picked up this story, omitting the suggestions as to infidelity.
President Pontneuf and Madame Pontneuf immediately commenced actions for breach of
confidence against „La Semaine Cabengaine‟ for knowingly publishing the health records of
In the meantime, the World Bank and IMF were becoming increasingly concerned about reports
– substantiated in a London court case – of lavish spending by President Pontneuf, his family and
allies; the shortage of teachers and doctors in many regions; and the lack of transparency over
what was happening to Cabengo‟s export revenues and to the foreign aid which it was receiving.
The leader of the opposition, François Pasteur of the Cabengon Liberal Party, challenged
President Pontneuf to a live debate on the issue of health provision and spending in the country,
on State television and radio. This was enthusiastically endorsed by a number of voices,
domestic and international. President Pontneuf agreed. The debate was to take place in the
Cabengon Parliament, with invited gallery guests from accredited media organisations. The
BBC, Reuters, Dow Jones, Le Monde and Le Canard Enchaîné were all permitted to attend.
A fortnight before the debate was due to take place, Madame Pontneuf, while driving to Poto for
an appointment at the clinic, was killed by a bullet wound in the head. Her husband said that the
diamond earrings, bracelet and necklace she had been wearing that morning had been stolen
from her corpse. A murder investigation was launched. In the circumstances, the Minister for
Health, Eugène St Lo, stepped into the President‟s place for the debate.
The Debate:
The debate was well attended, heated and ultimately short. François Pasteur demanded figures
breaking down how much of the country‟s foreign aid had been spent on the health sector and
how much, as a percentage, of Cabengo‟s oil and other mineral export revenues had gone to
St Lo: Only the President has the up-to-date figures. However, President Pontneuf‟s hospital
Pasteur: But you‟re the Minister for Health. The Socialist Party are all empty promises and
empty hospitals. All the world can see that President Pontneuf‟s health system is not good
Speaker of the Parliament: That is an extremely serious allegation and the President is not here to
defend himself. I cannot allow the debate to continue in these terms. Have we any questions from
Abloh‟s Intervention
At this point, Bernadette Abloh, wearing a „La Semaine Africaine‟ identity badge, walked up to a
lectern, which was next to a camera, and held up to the lens statements from the President‟s
xvii
credit cards showing lavish expenditure on expensive goods including healthcare in Poto,
jewellery and the upkeep of apartments in Paris, Vienna, Los Angeles and New York. She stated
that she had reason to believe that these credit card bills were met using funds from companies
which had received money from trading in Cabengon diamonds and oil. Ms Abloh was escorted
from the lectern by two security guards. However, international journalists continued to direct
questions to a stuttering St Lo about the President‟s spending. The debate, truncated by half an
Abloh‟s prosecution
In the wake of these events, Ms Abloh was prosecuted under the Cabengon Privacy, Data
Protection and Credit Fraud Prevention Act 2008 for showing the President‟s credit card details
to the nation. She was also prosecuted for giving a false name to the Parliament‟s security
officers before being admitted to the Gallery. The judge rejected the argument that this
disclosure was in the public interest, stating that the private expenditure of the President was not
a matter for the detailed knowledge of the general television-watching public. If there were
questions to be asked about the use of export revenues and aid, these were matters for,
respectively, the Cabengon Parliament itself and the donors of the aid. Ms Abloh was sentenced
to four months in prison. On appeal, the convictions were upheld, but a sentence of two months
was substituted.
President Pontneuf sued the television channel, „La Semaine Cabengaine‟ and the individual
journalist, Marie Challet, who wrote the report of the debate proceedings, for the defamatory
allegations that he was a hypocrite, thief and a wife-murderer. The judge declined to hold any of
them liable for carrying or reporting François Pasteur‟s comments, saying that not only were all
xviii
these remarks covered by qualified privilege, it was difficult to see how the TV station, in a live
broadcast, could be held responsible for broadcasting what Pasteur had said on the floor of the
Parliament. He also exculpated Marie Challet for her coverage, as she had had it “legalled” by
the newspaper‟s legal advisors and had originally headlined her piece “All The President‟s
Spend”. However, he found „La Semaine Cabengaine‟ liable for damages of £230,000, of which
£200,000 was compensatory and £30,000 exemplary, for its altered headline. Coupled with the
newspaper‟s earlier coverage of the Poto „Citizen‟s‟ “medical records” exclusive, the choice of
the headline was indicative of malice which would defeat qualified privilege. The judge also held
that qualified privilege did not and could not extend to reporting the words of “a renegade
journalist” speaking from the gallery. Although he accepted that there were “legitimate questions
for the President to answer” about his financial affairs and their relationship with those of
The Poto doctor who had treated Madame Pontneuf confirmed her and her husband‟s diagnoses,
but refused to state when and how Madame Pontneuf contracted the HIV virus, whether she had
ever had a blood transfusion or if her husband knew of her HIV status.
The same judge heard the breach of confidence case brought by President Pontneuf against „La
Semaine Cabengaine‟. He called the newspaper‟s reports of the Poto „Citizen‟s‟ story “an
to find and to investigate its own stories”. Attacking the newspaper for blighting the last days of
the ill-fated Madame Pontneuf, he awarded £35,000 to the President and £85,000 posthumously
New legislation
In the meantime, the Cabengon Socialist Party brought forward legislation making the licensing
of broadcasting enterprises, TV, radio or online, contingent upon all programmes and
contributions, including posted texts from the public, being pre-recorded and/or pre moderated.
This was narrowly passed in the Cabengon Parliament. The day after the Bill went through, the
Cabengon police announced that they were closing the murder investigation into Madame
Pontneuf‟s death.
Bernadette Abloh, with three weeks left to serve of her two-month sentence, was prosecuted
afresh for incitement. It was deemed that she was directly responsible for the chain of events
which led to this bloodshed, to discord with the state of Poto and to adverse further economic
and political scrutiny by the World Bank. She was gaoled, as a second offender, for a year.
Abloh and „La Semaine Cabengaine‟ submitted an application to the Universal Freedom of
Expression Court that their respective Article 19 rights had been violated.
xx
SUMMARY OF ARGUMENTS
1. The new legislation that emphasizes on compulsory licensing and pre-recording of all
broadcasts is squarely invasive of the Right to Free speech and expression guaranteed under the
UDHR. It is well understood that right to free speech and expression shall not be interfered with
unreasonably. By the act of licensing and pre-recording, the media‟s right for free speech and
expression is limited to a great extent, thereby nullifying the journalistic privileges under
journalistic sources is considered essential under article 19 of the UDHR. A legislation offering
protection for anonymous evidence is necessary to ensure that the needs of justice are served.
Press is imposed with a duty not to disclose the identity of a Journalistic source and disclosing
the same shall amount to an offence. Non-disclosure of journalistic source is considered vital
owing to the relationship of confidence between the journalist and the source.
3. The parliamentary debate has been convened so as to question President Pontneuf about lack
of financial transparency. Abloh acting in her Journalistic capacity reveals details pertaining to
the issue under consideration, which substantiate that the President has acted mala fide. The
interventions by Abloh aimed at the welfare of the public, shall amount to a political expression
in a democratic state. Interventions from the gallery are required to be accorded qualified
4. The act of breach of confidence has not been committed by La semaine cabengaine, which has
only disclosed material which is already published. The interest of the public offers a right to the
press to seek information, even when it is confidential in nature. The interest of the public shall
xxi
be paramount over private interest. Also, the health conditions of a political entity can be
revealed considering the capability to carry out the public functions endowed. The quantum of
damages imposed are highly unreasonable considering the publication was aimed at public
welfare.
5. La semaine cabengaine has not committed an act of defemation by merely changing the
headline. A mere reporting of the proceedings in a parliamentary debate shall not amount to
defamation. Alteration of the headline was to provide accuracy in summarizing the contents of
the article authored by Marie challet. Press is imposed with freedom to criticize and provocate
public authorities. The level of tolerance of Political leaders and the Government is required to
be high. The damages imposed for non-defamatory reporting of the proceeds of the
6. The prosecutions of abloh for false identity cannot be upheld as she has acted in good faith,
with the aim of imparting information of public relevance. False identity was provided for a
noble act. Disclosure of the credit card information was done to bring light upon the lavish
expenditure of the President. Moreover, the credit card details had already been substantiated in
the London Court Case and the plea of invasion of privacy is not maintainable for disclosed
information. The allegation of incitement upon Abloh is wrongful because there is no proximate
cause present to substantiate that she is responsible for the bloodshed. The conviction of Abloh
without providing a proper trial is to detain and prevent further detrimental revelations to the
president.
xxii
STATEMENT OF JURISDICTION
The application is submitted by Ms. Bernadette Abloh and La Semaine Cabengaine, the
Applicants alleging the infringement of their rights and freedoms as guaranteed under Article 19
of the UDHR by the State of Cabengo, the Respondent before this Universal Freedom of
Expression Court. This Court is vested with jurisdiction to hear this dispute.
1
ARGUMENTS
The New Legislation1 passed by the Cabengon Parliament requires that all broadcasts, including
TV, radio and online, contingent upon all programs and contributions, including posted texts, to
1.1.1.International and domestic law uphold Right to freedom of expression which shall
stand restrained.
Art.19 of the Universal Declaration of Human Rights, 1948 and Art.19 (2) of International
Covenant on Civil and Political Rights, 1966 deal with the right to freedom of speech and
expression.
In addition to the above said instruments, there are various other instruments 2 that impose
an obligation on the State to safeguard the right to free speech and expression.
1
As provided in para 18 of the facts, pertaining to the law providing for licensing of Broadcasts.
2
The following are the International Conventions and Principles:
Article 4 of the American Declaration and the Rights and Duties of Man;
expression”3 This prohibition against prior restraint is derived from the First Amendment to the
Constitution of the United States of America. Prior restraints are viewed by the Supreme Court
of the United States, as “...the most serious, and the least tolerable infringement on First
Amendment Rights....”4
The Courts repeatedly have found that such attempts to censor the media are presumed
unconstitutional.5 In a number of recent decisions in free speech cases 6 the Supreme Court of
the United States of America has reiterated a concept which antedates by centuries to the
emergence of the “clear and present danger” test7 and the elevation of First Amendment
freedoms to a “preferred position” in the constitutional scheme, 8 that of the doctrine condemning
3
Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 248 (7th Cir. 1975).
4
Nebraska Press Association v. Stuart, 427 US 539, 559 (1976).
5
Bantam Books, Inc. v. Sullivan, 327 US 58 (1963).
6
Saia v. New York, 334 US, 558 560 (1948); Thomas v. Collins, 323 US 516, 540 (1945);
Murdock v. Pennsylvania, 319 US 105, 144 (1943); Cantwell v. Connecticut, 310 US 296, 306
Town of McCormick, 321 US 573, 575 (1944); Murdock v Pennsylvania, 319 US 105, 115
(1943).
3
Article 13 (2) (b) of the American Convention on Human Rights9, mandates that prior
restraint in any form is prohibited and the media cannot be subjected to pre-censorship with the
ruse of national security. The press plays an essential role of a “public watchdog” in a
democratic society.10 Although formulated primarily with regard to the print media, these
In the case of Sunday Times v. United Kingdom12, Judge Zekia opined as follows:
“You cannot enjoy or exercise the right to freedom of expression if the enjoyment of such
1.2.Online interactive newspaper site shall stand affected by the new legislation
9
The American Convention on Human Rights, O.A.S Treaty Series No. 36, 1144 U.N.T.S. 123,
entered into force July 18, 1978. See also Observer and Guardian v. The United Kingdom,
Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 62, ECHR 1999-III. see, mutatis
mutandis, Barthold v. Germany, judgment of 25 March 1985, Series A no. 90, p. 26, §
Majid Nizami, Editor in Chief the Nation Nawa-e-Waqt, Lahore and Another PLD 2002
The ECtHR has affirmed that the right to freedom of expression “applies not only to the content
of information but also to the means of transmission or reception since any restriction imposed
on the means necessarily interferes with the right to receive information.” 14 The US Supreme
Court has often stated that access to the means of communication falls within the First
Amendment guarantee of freedom of speech15, while the Zimbabwean Supreme Court observed
in 1988 that “[t]oday, television is the most powerful medium for communications, ideas and
to use such a medium. 16 It can be deduced that interference with the internet shall infringe the
transparency and accountability, while discouraging abuse of power. The Constitution says all
14
Autronic AG v. Switzerland, 22 May 1990, Application No. 12726/87.
15
Red Lion Broadcasting Co. Inc. v. FCC (No 2) (1969) 395 US 367; City of Los Angeles and
Dept of Water and power v. Preferred Communications Inc. (1986) 476 US 488; Metro
16
Quoted with approval in Belize Broadcasting Authority v. Courtenay and Hoare [1988] LRC
17
E-Participation is "the use of information and communication technologies to broaden and
deepen political participation by enabling citizens to connect with one another and with their
spheres of government (national, provincial and local) have to make it easy for people to
OF SIGNIFICANT IMPORTANCE
Protection of journalistic sources has been recognised in various international principles and
declarations19. Moreover, there are several other relevant domestic provisions 20. A relationship of
confidence exists between a journalist and a source21. The absence of a law protecting
18
Chapter 6a - Democracy and Public Participation as provided in
http://www.paralegaladvice.org.za/docs/chap06a/03.html)
19
Principle 6 of the Lima Principles and Principle 3 of the Chapultepec Declaration, formulated
Procedure Code and Section 53 of the Criminal Procedure Code of Germany, Article 5 of The
German Press Code; FPA(Freedom of Press Act ),Sweden, Chapter 3, Article 5; Section 10 of
constitutional right. In fact, many states in the United States have enacted generous „shield‟
statutes conferring qualified, or in some instances absolute privilege in the press not to disclose
sources of information. 23
The fact that journalistic sources can be reasonably confident that their identity will not
be disclosed makes a significant contribution to the ability of the press to perform their role in
had a First Amendment right to break its promise to its source and reveal his identity as an aspect
of its story26. The majority rightly held that the general law of promissory estoppel bound the
22
Branzburg v. Hayes, 408 U.S. 665, 677 (1972)
23
See pg 438, Freedom of speech, Eric Barendt, second edition, ISB-10: 0-19-568289-0
24
As Lord Woolf Cj put in the recent case. Ashworth hospital authority v. MGN Ltd[2002] 4
As a result the press may no longer be able to play its vital role as “public watchdog” and
the ability of the press to provide accurate and reliable information may be adversely affected if
Press freedom
The right to freedom of press is inherent in the right to freedom of speech and expression.
In Goodwin v UK29 the need to protect journalists' sources30 to ensure freedom of expression, and
therefore a democratic society, was affirmed. Respect for such confidentiality is on this view an
31
integral aspect of freedom of speech and press freedom, as well as a moral obligation. The
German Constitutional Court has held without hesitation that, press freedom covers the
confidentiality of sources.32
The European Court of Human Rights, has also stressed that it should provide very strong
protection for journalistic sources which has been described as „one of the basic conditions for
28
see, mutatis mutandis, Goodwin v. the United Kingdom, judgment of 27 March 1996, Reports
press freedom‟33. In Spiegel Case34 the Court had made it plain that journalist‟s privileges, such
as the immunity from disclosing sources, should not be regarded as their personal entitlements;
rather they existed solely to enable the press to discharge its public role.35 It is for the state to
Anonymous evidence with vital information cannot be proceeded upon owing to the lack
of protection afforded by the government. The murder of Madame Pontneuf , the fastened
closure of investigation and the anonymous evidence stating the president to be instrumental in
In the controversial case of Judith Miller, Petitioner v. US and M Cooper and Time
Inc, Petitioners v. US,37 the importance of an anonymous source was reitrated. Doing so would
endanger the media and their sources and also jeopardize their ability to gather news and critical
information for the public and to expose the wrong doing and corruption.
33
Goodwin v. United Kingdom (1996) 22 EHRR 123, para 39: Disclosure order and fine for
refusing to disclose source a violation of article 10; P Milmo and M Rogers (eds), Gatley on libel
and Slander (9th edn, Sweet & Maxwell, 1998) para 30.112; See also K v. Austria (1993) Series
A No 255-B;
34
Spiegal case, 20 BVerfGE 162 (1966).
35
See pg 440, Freedom of speech, Eric Barendt, second edition, ISB-10: 0-19-568289-0
36
Goodwin v. United Kingdom, (1996) 22 EHRR 123, at 39.
37
Judith Miller, Petitioner v. US and M Cooper and Time Inc, Petitioners v. US, Supreme Court
(2005) No 004-1508.
9
The debate which has taken place in the Cabengon parliament is a parliamentary debate as it is
intended between the members of the Parliament, namely Francois Pasteur and the President and
Abloh does not intervene during the occurrence of the debate. Only after the Speaker of
the Parliament invites for questions from the visitor‟s gallery does she approach the lectern and
Tierfabriken V. Switzerland, in one of its boldest decisions, held that the restriction on free
political speech could not be sustained 38. Freedom of political debate and the press gives the
public one of the best means of discovering and forming an opinion about ideas and attitudes of
Political expression is central to a democratic system which requires that even ideas that „offend,
38
Tierfabriken v. Switzerland (2002) 34 EHRR 4.
39
Lingens v. Austria (1986) 8 EHRR 103 para 42.
40
See Handyside v. United Kingdom (1976) 1 EHRR 737 para 49; Lehideux and Isornia v.
Journalistic freedom means that the media can have recourse to exaggeration or even
provocation. Otherwise the press is not able „to play its vital role of public watchdog‟ 41. In the
case of Zana vs Turkey42 the court summarised and reaffirmed the fundamental of press rights.
There is limited scope for restricting political speech or debate on matters of public
interest. Politicians must be tolerant of sharp criticism of themselves, in the same democratic
43
interest. In Lingens V. Austria44, the right of a journalist to criticize a politician 45 was upheld
when the press was found to have a duty and responsibility in a democratic society to „impart
41
See: Thorgeir Thorgeirson v. Iceland, judgment of 25 June 1992, Series A no. 239, p. 28, § 63,
Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 62, ECHR 1999-III. see, mutatis
mutandis, Barthold v. Germany, judgment of 25 March 1985, Series A no. 90, p. 26, §
Although, freedom of political debate is not absolute, the Government must react
Public officials are not entitled to protection when the remarks form part of an open
discussion on matters of public concern or involve the freedom of the press 47.
A speaker has a right to express opinions and a willing hearer has the right to receive the
communication48. The State must not stand between the speaker and his audience and thus defeat
The Inter American Commission has opined that Desacato Laws50 are incompatible with
the right to freedom of expression under Article 13, of ACHR51. In the interest of the democratic
46
Incall v. turkey (1998) 4 BHRC 476, 491-492 paras 52-59; See also Janowski v. Poland (1999)
5 EHRR 672
47
Janowski v Poland No 2, (49033/99), 23/09/2003.
48
Article 10 of the ECHR, expressly includes the right to „impart information and ideas‟.
49
Groppera Radio AG v Switzerland (1990) 12 EHRR 321 para 53; Casado Coca v. Spain
“scrupulously respected”.52 The Commission also noted that to insure the smooth functioning
of a democratic public order, democratic governments must allow individuals to criticise public
officials. 53 According to the established Siracusa Principles on the Limitation of Civil and
Political Rights,54 the restriction clauses in Article 19 of the ICCPR55 “shall not be used to
protect the state and its officials from public opinion or criticism.” 56
51
American Convention on Human Rights, O.A.S.Treaty Series No. 36, 1144 U.N.T.S. 123,
entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in
52
Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism,
Inter-American Court. H.R., Advisory Opinion OC-5/85 of 13 November 1985, Ser. A, No. 5, ¶
69 at 122.
53
Report on the Incompatibility of Desacato Laws with the American Convention.
54
United Nations, Economic and Social Council; Siracusa Principles on the Limitation and
signature, ratification and accession by GA Res. 2200A (XXI), 16 December 1966 entry into
The scope of the fair comment defence to libel actions enables courts to discriminate
between contributions to public discussion on the one hand and purely private character
assassination on the other; the fair comment defence, protects the expression of opinion on
matters of public interest, not gossip which the public considers entertaining 57.
In Branson v Bowyer, the Court decided that a test of fairness had no role in the fair
comment defence, which exists to protect expressions of genuine opinion on matters of public
interest.
The defence of qualified privilege fails when the disclosure is tainted with malice. Abloh
appearing in her Journalistic capacity, owing a duty to the public has disclosed information
Abloh possesses adequate knowledge about the activities of the President and has come forward
to disclose the same. Her intentions and efforts are to aid the public in understanding the truth
Breach of Confidence arises when information which is confidential has been disclosed to the
public58. The individual alleging breach of confidence has to prove that the information has not
come into the public domain and the same has been disclosed.
57
Reynolds v. Times Newspapers [2001] 2 AC 127;
58
"Oxford English Dictionary, 2nd Edition, Version 4.0 (Windows & Mac)".
14
The right to privacy is not an absolute one, and, so, it may be restricted by the States
provided that their interference is not abusive or arbitrary; accordingly, such restriction must be
statutorily enacted, serve a legitimate purpose, and meet the requirements of suitability,
„La Semaine Cabengaine‟, which stands as the only dissent voice against the Government
and within the state of Cabengo, has a duty to report the activities of the president pertaining to
basis of a Government.60
In the case of Ivcher Bronstein v. Peru 61, it was held that in a democratic system, the acts
or omissions of the Government should be subject to rigorous examination, not only by the
59
Case of Tristán Donoso v. Panamá Judgment of January 27, 2009
60
Francis Trevellan Miller LL. Published in the New York times, August 21, 1921
61
Ivcher Bronstein v. Peru, I.A.Court H.R., Judgment of February 6, 2001, Series C, No. 74
62
This opinion has been reiterated by the Court in the case of Surek and Ozdemir v. Turkey62
and the case of Krone Verlag GMBH & Co. Kg v. Austria 62.
15
„La Semaine Cabengaine‟ has published an article pertaining to the health records of the
President and Madame Pontneuf. The article cannot be termed as confidential information as it
has already come into the public domain by Citizen‟s publication. It is pertinent to note that
The only reason for mention of the health records is to signify that the president is able to
provide treatment for himself and his wife and not for his own countrymen.
The Freedom of Access to information is to enable citizens to acquire official information which
may be of particular concern, for example, medical records or discussions concerning planning
policy, or which enables them to access the wisdom of government policies and so participate
fully in public disclosure.63. The „right to know‟ as an aspect of freedom of speech has a long and
In most liberal democracies it is regarded as legitimate for the media to publish details of
a politician‟s health, because there is a reasonable assumption that it may affect the discharge of
his duties65.
63
See pg 108, Freedom of speech, Eric Barendt, second edition, ISB-10: 0-19-568289-0
64
See J.Milton, Areopagitica: A speech for the Liberty of Unlicenced Printing (1644) in Prose
Writings (Everyman, !958), 145, and J.Madison, quoted in T.I.Emerson, „Legal Foundations of
the Right to Know‟(1976 54 Washington Univ Law Quarterly 1; Also see P.Bayne, „Freedom of
The damages which have been awarded for breach of confidence are excessive in nature. It is
vital to note that convicting a journalist for protecting the entities affected is disproportionate 66.
In Bergens Tidende V. Norway67, the public interest in dealing with allegations of unacceptable
healthcare meant that an award of substantial damages against a newspaper on the basis of the
In the case of New York Times Co. v. Sullivan,68 the Court explained that freedom of
the press encompasses the right to be largely exempt from any punishment when it reports the
The principle evolved in this case has been reiterated in the cases of Fraser v. Evans,69 and
Near v. Minnesota.70
66
In Jersild V. Denmark (1994) 19 EHRR 1.
67
Sim v. Stretch(1936) 52 TLR 669; Gatley on libel and slander (9th edition, Sweet & Maxwell,
1998) para1.9.
68
New York Times Co.v. Sullivan, 376 US 254 (1964).
69
Fraser v. Evans, [1969] 1 All ER 8, 10.
70
Near v. Minnesota, 283 US 697 (1931).
17
Criminal Defamation is defined in the Montana Code71 as “Defamatory matter is anything that
„La Semaine Cabengaine‟ in its journalistic capacity has reported the occurrences in the debate
proceedings verbatim72.
In the case of Thoma v. Luxembourg 73, where the ECtHR, in its learned view stressed on the
This opinion has been reiterated in the case of Jersild v. Denmark74 and Sheikh Muhammad
Rashid v. Majid Nizami, Editor in Chief the Nation Nawa-e-Waqt, Lahore and Another75.
In the recent case of Schwarz v. Salt Lake Tribune,76 wherein it was propounded that
71
Montana Code Annotated 2007, enforced and accepted on 17 Nov 2008.
72
Meaning “using exactly the same words as were originally used”. "Oxford English
The importance of press freedom, also influenced the Courts approach in Bladet Tromso
and Stensaas V. Norway77, where it concluded the vital interest in ensuring a public debate over
the matter of local and national interest outweighed the interests of those who issued defamation
Equally, Courts nay allow the press freedom in some circumstances to disclose the details
of the private lives of celebrities, taking the view that freedom of speech and of the press trumps
The Court has frequently stressed that the limits of acceptable criticism are wider for a
Politician than a Private Citizen79. A politician lays himself open to close scrutiny of his every
word and deed by both journalists and the general public and must display a greater degree of
When Statements are published as part of a „general interest‟ debate concerning matters
81
such as public health they may also be accorded greater protection.
76
Schwarz v. Salt Lake Tribune, May 5, 2005 UT APP 206
77
Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 62, ECHR 1999-III.
78
See pg 199, Freedom of speech, Eric Barendt, second edition, ISB-10: 0-19-568289-0
79
in Lingens v. Austria (1986) 8 EHRR 407.
80
Castells v. Spain (1992) 14 EHHR 445 para 46
81
Hertel v. Switzerland (1998) 5 BHRC 260.
19
The same Judge for both the cases has clearly stated that there were vital questions for the
President to answer about his financial affairs. However, without enquiring or conducting an
investigation into the allegations for utilization of the funds, a final judgement has been passed.
This signifies bias on the part of the judge, which defeats the claim that the Judiciary is required
to be impartial.
Inevitably, in its view, such an implied freedom must protect political discussion from
onerous criminal and civil liability in defamation. Otherwise freedom of political communication
would be ineffective; it would make no sense to assert a freedom which could be inhibited by
In Tolstoy v UK83 the amount of damages awarded against the applicant in the defamation
expression.
The defamatory damages which have been imposed are highly excessive in nature,
especially when La Semaine Cabengaine has acted in its professional capacity and not
82
See pg 201, Freedom of speech, Eric Barendt, second edition,
83
Tolstoy v. United kingdom.
20
6.1.False identity
Abloh standing in a Journalistic capacity has gained entry by wrongful means to disclose
reports substantiating mala fides on behalf of the president. The debate has the right audience on
The right of freedom of expression considering the public interest can override the duty of
confidence and privacy. The principle substantiating the defence of „public interest‟ has been
Abloh does not possess any mala fide intent in gaining wrongful entry. False identity was
utilized for gaining entry as in her official journalistic capacity, she was not allowed to gain
entry.
The ECtHR emphasises the duty of the press to impart information and ideas on matters of
public interest85. The right to privacy is not an absolute one, and, so, it may be restricted by the
84
Restrictions on freedom of expression maybe difficult to justify where directed to a willing
States provided that their interference is not abusive or arbitrary; accordingly, such restriction
must be statutorily enacted, serve a legitimate purpose, and meet the requirements of suitability,
necessity, and proportionality which render it necessary in a democratic society 86. The revelation
of credit card details is to exemplify the lavish expenditure public funds and lack of
transparency.
The credit card details revealed have also been disclosed in the London Court case. It is
significant to note that data protection is vital for confidential and undisclosed information and
the credit card details shall not fall within this ambit.
6.3.Incitement
6.3.1.No Proximate cause for holding Abloh responsible for the bloodshed
The initial grounds on which Abloh has been held liable is very flimsy. Moreover, there
6.3.2.Abloh cannot be held responsible for discord with enemy state Poto
It is pertinent to note that Poto is an enemy state to Cabengo and there is discord which is already
85
Observer and Guardian v. the United Kingdom, judgment of 26 November 1991, Series A no.
Abloh has been responsible for initiating further economic and political scrutiny by
World Bank, which is a welcome change considering the lack of transparency in utilization of
Abloh has not been provided an option of representing her case which is an essentiality of
Natural Justice. Article 6 (1) of the Convention for the Protection of Human Rights and
Fundamental Freedoms87, and Article 8.1 of the Organisation of American States, provides
87
European Convention of Human Rights, adopted in Rome on November 1950.
23
SUBMISSIONS
OF EXPRESSION
Sd. /-_______________________