9-A

THE 2010 MONROE E. PRICE INTERNATIONAL MEDIA LAW

MOOT COURT COMPETITION
MARCH 24-27, 2010

IN THE HONOURABLE UNIVERSAL FREEDOM OF EXPRESSION COURT

LA SEMAINE CABENGAINE AND BERNADETTE ABLOH

(APPLICANTS)

v.

STATE OF CABENGO

(RESPONDENT)

ON SUBMISSION TO THE HONOURABLE UNIVERSAL FREEDOM OF

EXPRESSION COURT

TEAM NO. 9

MEMORIAL FOR THE APPLICANTS

Words:5000
 ii

TABLE OF CONTENTS

PG.

LIST OF ABBREVIATIONS………………………………………………iii

LIST OF SOURCES/AUTHORITIES……………………………………..v

CONVENTIONS AND PRINCIPLES……………………………..v

BOOKS REFERRED ……………………………………………….vi

ARTICLES REFERRED……………………………………………vi

MISCELLANEOUS DOCUMENTS……………………………….viii

LIST OF CASES…………………………………………………….ix

QUESTIONS PRESENTED………………………………………………….xii

STATEMENT OF RELEVANT FACTS……………………………………..xiii

SUMMARY OF ARGUMENTS………………………………………….…xx

STATEMENT OF JURISDICTION……………………………………….…..xxii

ARGUMENTS………………………………………………………………. .1-22

SUBMISSIONS.....................................................................................................23
 iii

LIST OF ABBREVIATIONS

& - And

§ - Section

¶ - Paragraph

A.C. - Appeal Cases (L.R.)

ACHR- American Court Of Human Rights

All ER- All England Reporter.

Art- Articles

Cf.- Conference

Cir- Circuit

Co.- Company

Doc.- Document

e.g-. Example

ECHR- European Commission of Human Rights

ECtHR- European Court of Human Rights

Ed.- Edition

EHRR- European Human Rights Reports

FPA- Freedom of press act

Harv. L. Rev- Harvard Law Review.

I.A.Court H.R.- Inter American Court Of Human Rights

ICCPR- International Convention on Civil and Political rights.

 iv

Id- Ibid

K.B.- Kings Bench

L.J- Law Journal

LSC-La Semaine Cabengaine

n.- Note

No.- Number

OAS- Organisation of American States

p. - Page

pp. - Pages

Q.B – Queens Bench

Res.- Resolution

Supp.- Supplement

UK- United Kingdom

UN– United Nation

US- United States Reporter

USA- United Sates of America

UDHR-Universal Declaration on Human Rights

 v

LIST OF SOURCES & AUTHORITIES

CONVENTIONS AND PRINCIPLES

 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)

 The Johannesburg Principles on National Security, Freedom of Expression and

Access to Information, Freedom of Expression and Access to Information, UN Doc.
E/CN 4/1996/39

 European Convention of Human Rights , adopted in Rome on November 1950

 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

 Declaration of Principles on Freedom of Expression in Africa, African Commission on

Human and Peoples' Rights, 32nd Session, 17 - 23 October, 2002: Banjul

BOOKS REFERRED

 Francisco Forrest Martin et al, International Human Rights Law & Practice : Cases,
Treaties and Material, Kluwer Law International, 1997

 Inter American Yearbook on Human Rights, Volume 3, Martinus Nijhoff Publishers,

Kluwer Law International, 1999
 vi

 Richard Clayton, Hugh Tomlinson, Privacy and Freedom of Expression,( Oxford;

Oxford University Press,2001)

 Wayne Overbeck, Major Principles of Media Law 1995 Ed.(United States of

America,Harcourt Brace College Publishers)

 Eric Barendt, Freedom of Speech 2nd Ed. (Oxford; Oxford University Press)

 Chris Reed, Internet Law 2nd Ed. (Cambridge; Cambridge University Press)

 Frances Quinn, Law for Journalists (England; Pearson Education Limited)

 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)

 Larry Alexander, Is There a Right of Freedom of Expression? , (Cambridge; Cambridge

University Press)

 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)

 Lili Levi, Dangerous Liaisons: Seduction and Betrayal in Confidential Press-Source

Relations, 43 Rutgers L.Rev. (1991), at 660

 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)

 Sandra Coliver, Defamation Jurisprudence of the European Court of Human Rights,

13 MEDIA L. & PRAC. 250 (1992)

 Sheran & Isaacman, Hartman, at 638, 695-99 (reprinting codes of ASNE and SPJ

 Ariel L. Bendor, Prior Restraint, Incommensurability, and The Constitutionalism

of Means, 68 Fordham Law Review 289, 299 (1999)

 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

 Cynthia L. Counts. Amanda Martin, Libel in Cyberspace : A Framework For

Addressing Liability and Jurisdictional Issue In This New Frontiers, Albany Law
Review, 1996

 John Jeffries, Rethinking Prior Restraint, 92 Yale Law Journal 409, (1983)

 Source Recovery for Breach of a Confidentiality Agreement. 73 Minnesota Law

Review 1553, 1554 (1989)

 Michael Fitzsimmons, Defending The Informers: The Media’s Right To Protect

Non-Confidential Source Information Following United States v Smith, Villanova
 viii

MISCELLANEOUS DOCUMENTS

 Inter-American Declaration of Principles on Freedom of Expression, 108th Regular

Session, 19 October 2000

 Inter-American Commission on Human Rights, Annual Report 1994, Report on the

Compatibility of "Desacato" Laws with the American Convention on Human Rights,
OEA/Ser L/V/II.88, Doc. 9 Rev (1995)

 Recommendation No R (2000) 7 of the Committee of Ministers, Council of Europe

 World Press Freedom Committee, 2000: 5.United Nation Organisation

 ix

LIST OF CASES

U.S. SUPREME COURT CASES

Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 248 (7th Cir.1975)

Nebraska Press Association v. Stuart, 427 US 539, 559 (1976)

Bantam Books, Inc. v. Sullivan, 327 US 58 (1963)
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 (1940)
Lovell v. City of Griffin, 303 US 444, 451 (1938)
Schenck v. United States, 249 US 47, 52 (1919)
Kovacs v Cooper, 336 US 77, 88 (1949)
Marsh v Alabama, 326 US 501, 509 (1946)
Follet v Town of McCormick, 321 US 573, 575 (1944)
Murdock v Pennsylvania, 319 US 105, 115 (1943)
Red Lion Broadcasting Co. Inc. v. FCC (No 2) (1969) 395 US 367
Metro Broadcasting Inc. v. FCC (1990) 497 US 445)
Branzburg v. Hayes, 408 U.S. 665, 677 (1972)
Cohen v. Cowles Media, 501 US 663(1991)
Time Inc, Petitioners v. US, Supreme Court (2005) No 004-1508

EUROPEAN COURT OF HUMAN RIGHTS CASES:

Thorgeir Thorgeirson v. Iceland, 25 June 1992, Series A no. 239, p. 28, § 63
Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 62, ECHR 1999-III
Barthold v. Germany, judgment of 25 March 1985, Series A no. 90, p. 26, § 583
Jersild v. Denmark, September 1994, Application No. 15890/89.
The Sunday Times v The United Kingdom, 6538/74, 26 April, 1979, ECHR
Autronic AG v. Switzerland, 22 May 1990, Application No. 12726/87
Goodwin v. the United Kingdom, 27 March 1996, Reports 1996-II, p. 500, § 39)
 x

Roemen and Schmit v. Luxembourg, 51772/99 of 25 February 2003

Spiegal case, 20 BVerfGE 162 (1966)
Goodwin v. United Kingdom (1996) 22 EHRR 123
Judith Miller, Petitioner v. US and M Cooper,
Tierfabriken v. Switzerland (2002) 34 EHRR 4
Lingens v. Austria (1986) 8 EHRR 103 para 42
1 See Handyside v. United Kingdom (1976) 1 EHRR 737
Lehideux and Isornia v. France (1998) 5 BHRC 540, 558
Thorgeir Thorgeirson v. Iceland, 25 June 1992, Series A no. 239, p. 28, § 63
Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 62, ECHR 1999-III
Barthold v. Germany, 25 March 1985, Series A no. 90, p. 26, § 58
Zana v. Turkey (1997) 27 EHRR 667
Lingens v. Austria (1986) 8 EHRR 103
Oberschlick v. Austria (No 1) (1991) 19 EHRR 389
Schwane v. Austria (1992) Series A No 242-B
Lingens v. Austria (1986) 8 EHRR 103
Prager and Oberschlick v. Austria (1995) 21 EHRR 1
Von Hannover v. Germany(59320/00) 26/6/2004
Oberschlick v. Austria (No 1) (1991) 19 EHRR 389
Janowski v Poland No 2, (49033/99), 23/09/2003
Groppera Radio AG v Switzerland (1990) 12 EHRR 321
Casado Coca v. Spain (1994) 18 EHRR 1
Castells v. Spain, 24 April 1992, 14 EHRR 445,
Ivcher Bronstein v. Peru, I.A.Court H.R., February 6, 2001, Series C, No. 74
Surek and Ozdemir v. Turkey
Krone Verlag GMBH & Co. Kg v. Austria
Jersild V. Denmark (1994) 19 EHRR 1
Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 62, ECHR 1999-III.
Lingens v. Austria (1986) 8 EHRR 407
Castells v. Spain (1992) 14 EHHR 445 para 46
Hertel v. Switzerland (1998) 5 BHRC 260
 xi

Thoma v. Luxembourg, 29 March 2001, No. 38432/97 ECHR

Jersild v. Denmark, September 1994, Application No. 15890/89

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-

recorded, interfered with the right to free speech and expression?

2. Whether the requirement of disclosure of journalistic sources is violative of the freedom of

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?

6. Whether Ms.Abloh can be prosecuted?

 xiii

STATEMENT OF RELEVANT FACTS

Cabengo- Social Background:

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.

Gun crime is widespread.

World bank & IMF‟s initiative:

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

improving the under-privileged by delivery of education and health services.

President Pontneuf Regime:

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.

Right to Free speech & expression- Domestic & International Guarantees:

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

country by opponents of the Cabengon Socialist Party.

The Citizen‟s HIV Editorial:

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

be suffering from sickle-cell anaemia.

 xv

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.

Breach of confidence Litigation

President Pontneuf and Madame Pontneuf immediately commenced actions for breach of

confidence against „La Semaine Cabengaine‟ for knowingly publishing the health records of

another without consent.

The London court case

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 Debate Challenge

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.

Madame Pontneuf‟s Death

 xvi

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

health. The transcript runs as follows:

St Lo: Only the President has the up-to-date figures. However, President Pontneuf‟s hospital

building programme is there for all the world to see.

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

enough for his own family.

St Lo: This is an indefensibly tasteless personal attack on a bereaved man.

Pasteur: Bereaved man? He is a wife-murderer

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

the visitors‟ gallery?

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

hour, received copious international coverage nonetheless.

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.

Suing and holding La Semaine Cabengaine for defamation:

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

Cabengo, this could not justify an accusation of uxoricide.

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.

La Semaine Cabengaine held liable for breach of confidence

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

appalling invasion of personal privacy and an abdication of a national newspaper‟s responsibility

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

to Madame Pontneuf, to be paid to the President as her heir.

 xix

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.

Prosecution for incitement by Abloh

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.

Submission for adjudication to the Universal Freedom of Expression Court

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

Domestic and International Law.

2. The absence of a legislation to protect Journalistic sources is highly detrimental to the

journalists as it acts as a deterrent to free and fair reporting of information. Protection of

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

privilege as freedom of the press is enshrined under Right to freedom of expression.

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

parliamentary debate cannot be upheld.

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

1.THE LAW PERTAINING TO LICENSING OF BROADCASTS IS IN VIOLATION OF

THE GENERAL PRINCIPLES OF INTERNATIONAL LAW.

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

be licensed, pre-recorded and pre-moderated.

1.1.Restraints not in compliance with International and Domestic Law

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.

1.1.2.Prior restraints are imposed as a result of Licensing

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 11 of the Charter of Fundamental Rights of the European Union;

Article 4 of the American Declaration and the Rights and Duties of Man;

Article 13 of the American Convention on Human Rights;

 2

Prior Restraint is defined as “a predetermined judicial prohibition restraining specific

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

the imposition of a previous restraint upon speech.

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

(1940); Lovell v. City of Griffin, 303 US 444, 451 (1938).

7
Schenck v. United States, 249 US 47, 52 (1919).
8
Kovacs v Cooper, 336 US 77, 88 (1949); Marsh v Alabama, 326 US 501, 509 (1946); Follet v

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

principles doubtless apply also to the audiovisual media 11.

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

right is made conditional”.

1.2.Online interactive newspaper site shall stand affected by the new legislation

1.2.1.Licensing shall inhibit the aim of an online interactive newspaper site

The Internet carries a vast array of information resources and services13.

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,

ECHR, 13585/88, 26 November 1991, par. 59.

10
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, §

58; Lingens, cited above, p. 27, § 44; andMonnat, cited above, § 70

11
Jersild v. Denmark, September 1994, Application No. 15890/89. Sheikh Muhammad Rashid v.

Majid Nizami, Editor in Chief the Nation Nawa-e-Waqt, Lahore and Another PLD 2002

Supreme Court 514.

12
The Sunday Times v The United Kingdom, Application No. 6538/74, 26 April, 1979, ECHR.
13
http://en.wikipedia.org/wiki/Internet
 4

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

disseminating information. The enjoyment of freedom of expression therefore includes freedom

to use such a medium. 16 It can be deduced that interference with the internet shall infringe the

freedom of expression and information

1.2.2.Vitality of Interacting in a democratic society is barred

Online Interactive news sites shall instigate E-participation17 which encourages

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

Broadcasting Inc. v. FCC (1990) 497 US 445)

16
Quoted with approval in Belize Broadcasting Authority v. Courtenay and Hoare [1988] LRC

(Const) 276, at 284.)”

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

elected representatives" (Macintosh, A. (2006). "eParticipation in policy-making: the research

and the challenges http://zope03.indicator.dk/demo/dissemination/repository/am-policymaking.)

 5

spheres of government (national, provincial and local) have to make it easy for people to

participate in government 18.

2. THE PROTECTION OF JOURNALISTIC SOURCES IS AN ESSENTIAL

REQUIREMENT UNDER LAW AND A LEGISLATION SUPPORTING THE SAME IS

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

Journalistic Sources is condemnable.

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

by the Organisation of American States; Principle 18 of the Johannesburg Principles on National

Security, Freedom of Expression and Access to Information; Principle XV of the Banjul

Declaration of Principles on Freedom of Expression in Africa and Principle 1 of the

Recommendation No R (2000) 7 of the committee of Ministers, Council of Europe.

20
Article 109 (2) of Criminal Procedure Act, 4 January 1993 France ; Section 383 of the Civil

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

the Contempt of Court Act 1981 of United Kingdom.

21
The observer and the guardian newspaper vs united kingdom[1991]14 EHRR 153
 6

As the Supreme Court of the United States of America concluded in Branzburg V.

Hayes22, it is better for a privilege to be formulated by legislation than recognized as a

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

2.1. Confidentiality of Journalistic Sources is essential considering public interest.

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

society of making information available to the public. 24

The US Supreme Court in Cohen V. Cowles Media 25 considered whether a newspaper

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

press and protection of the Journalistic source was of utmost vitality27.

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

ALL ER 193, 210, HL.

25
501 US 663(1991).
26
Cohen v. Cowles Media, 501 US 663(1991).
27
Souter J. comment in the case Cohen v. Cowles Media, 501 US 663(1991).
 7

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

the journalists are forced to disclose the source. 28

2.2.Absence of an explicit right to protect journalistic sources is in violation of the right to

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

1996-II, p. 500, § 39)

29
Goodwin v. United Kingdom, (1996) 22 EHRR 123, at 39.
30
Judgment by the European Court of Human Rights (Fourth Section), case of Roemen and

Schmit v. Luxembourg, Application no. 51772/99 of 25 February 2003

31
See pg 436, Freedom of speech, Eric Barendt, second edition, ISB-10: 0-19-568289-0
32
Spiegal case, 20 BVerfGE 162 (1966). Auschwitz lie case, 90 BVerfGE 241 (1994).
 8

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

justify a disclosure order by an „overriding requirement in the public interest‟ 36.

2.3.Disability in pursuing anonymous evidence of vital significance.

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

murder, urge the need for protecting Journalistic Sources.

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

3. QUALIFIED PRIVILEGE EXTENDS TO ALL ACTIVITIES TAKING PLACE IN

THE PARLIAMENTARY FLOOR.

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

the debate was presided by the Speaker of the Parliament.

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

pose a question with adequate evidence to substantiate her claim.

3.1.Disclosure by Abloh shall amount to political expression

The disclosures made by Abloh amount to a political expression. The ECtHR in

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 leaders and is a core concept of a democratic society39.

3.1.1.Right to freedom of expression includes disclosures that offend, shock or disturb

Political expression is central to a democratic system which requires that even ideas that „offend,

shock and disturb‟ be published.40

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.

France (1998) 5 BHRC 540, 558 para 55.

 10

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.

3.1.2.Journalists posses a right to criticize Political entities

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

information and ideas on political issues‟

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, §

58; Lingens, cited above, p. 27, § 44; andMonnat, cited above, § 70

42
Zana v. Turkey (1997) 27 EHRR 667 para 5.
43
Lingens v. Austria (1986) 8 EHRR 103 para 42; Oberschlick v. Austria (No 1) (1991) 19

EHRR 389; Schwane v. Austria (1992) Series A No 242-B.

44
Lingens v. Austria (1986) 8 EHRR 103 para 103; but a more restrictive view of duties and

responsibilities was taken in Prager and Oberschlick v. Austria (1995) 21 EHRR 1;

45
Von Hannover v. Germany(59320/00) 26/6/2004; ÖZTÜRK v. TURKEY (22479/93) 28th

September 1999 ; Oberschlick v. Austria (No 1) (1991) 19 EHRR 389

 11

Although, freedom of political debate is not absolute, the Government must react

proportionately and without excess to criticisms made of it.46

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.

3.2.Disclosure is necessary in the interest of the public.

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 purpose for which the protection of expression is realised 49.

3.2.1.Right to freedom of Expression is vital in a democratic society

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

(1994) 18 EHRR 1 Para 59.

50
Desacato laws are a class of legislation that criminalises expression which offends insults or

threatens the public functionary in the performance of his official duties.

 12

public order inherent in the American Convention, freedom of expression must be

“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

3.2.2.Fair comment defence

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

the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992).

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

Derogation of Provisions in the International Covenant on Civil and Political Rights

55
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.

56
Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant

on Civil and Political Rights, Principle 37.

 13

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.

3.3.Disclosure is without malice on the part of Abloh

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

pertaining to the President.

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

and urge for transparency in the Government.

4.FINDING OF BREACH OF CONFIDENCE IS NOT SUSTAINABLE AND DAMAGES

AWARDED ARE UNREASONABLE.

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

4.1.Right to privacy is not absolute

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,

necessity, and proportionality which render it necessary in a democratic society59.

4.2.Public interest overrides private interest

„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

healthcare and utilization of funds. Newspaper is regarded as the foundation of democracy;

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

legislative and judicial authorities, but also by public opinion. 62

4.3.Breach of Confidence is not committed by „La Semaine Cabengaine‟

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

Citizen Newspaper is re-circulated throughout Cabengo and hence stands available.

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.

4.3.1.Journalists posses a right to access information for revelations of public importance

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

respectable ancestry, and is supported by some commentators now.64

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

Information and Political Speech‟, in T.Campbell and W.Sadurski 9eds.0, Freedom of

communication (Aldershot: Dartmouth, 1994), 199, 204-7.

65
See pg 245, Freedom of speech, Eric Barendt, second edition, ISB-10: 0-19-568289-0
 16

4.4.Award of damages is unnecessary and unreasonable

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

„natural and ordinary meaning‟ of the words used was disproportionate

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

truth about matters of public concern.

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

5.REPORTING OF DEBATE PROCEEDINGS BY „LA SEMAINE CABENGAINE‟ WAS

FAIR, ACCURATE AND NON-DEFAMATORY IN NATURE

Criminal Defamation is defined in the Montana Code71 as “Defamatory matter is anything that

exposes a person group, class, or associated to hatred, contempt, ridicule, degradation or

disgrace in society or injury to the person’s or its business or occupation.”

„La Semaine Cabengaine‟ in its journalistic capacity has reported the occurrences in the debate

proceedings verbatim72.

5.1.Freedom of press and expression stands jeopardized

In the case of Thoma v. Luxembourg 73, where the ECtHR, in its learned view stressed on the

freedom of expression, specifically that of the media.

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

„Journalists cannot be held responsible for reporting potentially defamatory statements

during public controversies as long as the reporting is “accurate and disinterested. ‟

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

Dictionary, 2nd Edition, Version 4.0 (Windows & Mac)".

73
Thoma v. Luxembourg, 29 March 2001, Application No. 38432/97 ECHR.
74
Jersild v. Denmark, September 1994, Application No. 15890/89.
75
Sheikh Muhammad Rashid v. Majid Nizami, Editor in Chief the Nation Nawa-e-Waqt, Lahore

and Another PLD 2002 Supreme Court 514.

 18

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

proceedings in protecting their reputation.

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

any competing rights.78

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

tolerance. The bounds of permissible criticism of the government is even wider. 80

5.2.Obligation of media to inform public about activities of public officials

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

5.3.Acceptance by the court would vitiate the Judgement propounded

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.

5.4.Quantum of damaged awarded for defamation is unreasonable

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

oppressive libel laws82

In Tolstoy v UK83 the amount of damages awarded against the applicant in the defamation

case were considered to be so disproportionate as to interfere with his right to freedom of

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

committed an act of defamation.

82
See pg 201, Freedom of speech, Eric Barendt, second edition,
83
Tolstoy v. United kingdom.
 20

6.PROSECUTION OF ABLOH IS IN VIOLATION OF RIGHT TO FREE SPEECH AND

EXPRESSION. PENALIZATION OF JOURNALISTIC ACTIVITIES IN

PROFESSIONAL CAPACITY IS IN VIOLATION OF INTERNATIONAL LAW

6.1.False identity

6.1.1.Compelling public interest

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 receiving end84, to whom the propagation is done.

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

held to justify disclosure of alleged corruption by a local authority.

6.1.2.Absence of mala fide intent on the part of Abloh

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.

6.2.Credit card details

6.2.1. No classification between acts of private nature and public nature

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

adult audience. (ox.. pg. 186// 619)

 21

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.

6.2.2.Disclosed revelations cannot be considered confidential

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

is no proximate cause or link to hold Abloh liable for the bloodshed.

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

existent. Stating Abloh to be responsible for discord is not maintainable.

6.3.3.Abloh is instrumental for World bank seeking transparency

85
Observer and Guardian v. the United Kingdom, judgment of 26 November 1991, Series A no.

216, pp. 29-30, § 59

86
Case of Tristán Donoso v. Panamá Judgment of January 27, 2009
 22

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

public funds in Cabengo.

6.3.4.Audi Alteram Partem (no individual should be condemned unheard)

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

for a right to a free trial, which has been denied to Abloh.

87
European Convention of Human Rights, adopted in Rome on November 1950.
 23

SUBMISSIONS

THE APPLICANTS RESPECTFULLY REQUESTS THIS HONORABLE COURT TO

ADJUDGE AND DECLARE THAT:

 THE REQUIREMENT FOR ALL BROADCASTS TO BE PRE-LICENCED AND PRE-

RECORDED IS VIOLATIVE OF THE RIGHT TO FREE SPEECH AND

EXPRESSION OF THE APPLICANT

 THE REQUIREMENT OF DISCLOSURE OF JOURNALISTIC SOURCES IS

VIOLATIVE OF FREEDOM OF EXPRESSION

 INTERVENTION BY MS.ABLOH IS ENTITLED FOR QUALIFIED PRIVILEGE

 „LA SEMAINE CABENGAINE‟ HAS NOT COMMITTED BREACH OF

CONFIDENCE AND AWARDING OF DAMAGES IS VIOLATIVE OF FREEDOM

OF EXPRESSION

 „LA SEMAINE CABENGAINE‟ CANNOT BE HELD LIABLE FOR DEFAMATION

AND THE DAMAGES AWARDED ARE UNREASONABLE

 CONVICTIONS OF MS.ABLOH ARE UNJUST AND ARBITRARY AND

VIOLATIVE OF FREEDOM OF EXPRESSION

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

Sd. /-_______________________

(AGENT FOR THE APPLICANTS)