T 2017-2018 P M L M C C: Applicant

229R
THE 2017–2018
PRICE MEDIA LAW
MOOT COURT COMPETITION
NEAM PEAPS & SCOOPS

Applicant
FEDERAL REPUBLIC OF TURTONIA

Respondent
MEMORIAL FOR THE RESPONDENT
Word Count: 4965

TABLE OF CONTENTS
LIST OF ABBREVIATIONS......................................................................................................... IV
LIST OF AUTHORITIES ...............................................................................................................V
STATEMENT OF RELEVANT FACTS .....................................................................................XVIII
STATEMENT OF JURISDICTION ............................................................................................XXIII
QUESTIONS PRESENTED ...................................................................................................... XXIV
SUMMARY OF ARGUMENTS .................................................................................................. XXV
ARGUMENTS ADVANCED ........................................................................................................... 1
ISSUE 1A : TURTONIA’S PROSECUTION OF PEAPS DOES NOT VIOLATE ARTICLE 19 OF
THE ICCPR ............................................................................................................................ 1
1A.1. The Act of Peaps violates ODPA ............................................................................. 1
1A.2. The Prosecution of Peaps does not violate Article 19 of ICCPR ............................. 2
ISSUE 1B : TURTONIA’S PROSECUTION OF SCOOPS UNDER THE ODPA DOES NOT
VIOLATE ARTICLE 19 OF THE ICCPR .................................................................................. 6
1B.1. Scoops freedom of expression was properly restricted pursuant to its duty to
monitor and remove derogatory post from its site .............................................................. 6
1B.2. The prosecution was necessary in a democratic society ......................................... 10
ISSUE 2A: TURTONIA’S PROSECUTION OF PEAPS UNDER THE IA DOES NOT VIOLATE
ARTICLE 19 OF THE ICCPR ................................................................................................ 12
2A.1. Turtonia properly prosecuted PEAPS under the IA because PEAPS incited
violence and thus incited civil unrest through false information...................................... 12
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2A.2. The prosecution was justified ................................................................................. 13
2A.3. Peaps‟ post on Scoops was hate speech .................................................................. 18
ISSUE 2B: TURTONIA’S PROSECUTION OF SCOOPS UNDER THE IA DOES NOT VIOLATE
ARTICLE 19 OF THE ICCPR ................................................................................................ 20
2B.1. Restriction on and prosecution of scoops is provided by law ................................. 20
2B.2. Restriction on and prosecution of scoops is pursuing a legitimate aim .................. 22
2B.3. Restriction on scoops conforms to the strict test of necessity and proportionality . 22
RELIEF SOUGHT ...................................................................................................................... 26
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LIST OF ABBREVIATIONS
ACHPR : African Court on Human and Peoples‟ Rights
ACHR : African Convention on Human Rights
AHRLR : African Human Rights Law Reports
African Charter : African Charter on Human and Peoples‟ Rights
Compromis : The 2017-18 Price Media Law Moot Court Competition Case
CUP : Cambridge University Press
ECHR : European Convention of Human Rights
ECtHR : European Court of Human Rights
EHHR : European Human Rights Reports
European : Convention for the Protection of Human Rights and
Convention Fundamental Freedom
IACtHR : Inter-American Court of Human Rights
ICJ : International Court of Justice
ICCPR : International Covenant on Civil and Political Rights
UDHR : Universal Declaration of Human Rights
UK : United Kingdom
UN : United Nations
US : United States
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LIST OF AUTHORITIES
International Declarations, Charters, Covenants, and Conventions
African Charter on Human and Peoples‟ Rights
(adopted 27 July 1981, entered into force 21 October 1986)
(1982) 21 ILM 58 (African Charter)
American Convention on Human Rights
(adopted 22 November 1969, entered into force 18 July 1978)
1144 UNTS 123 (ACHR)
Convention for the Protection of Human Rights and Fundamental Freedoms
(European Convention on Human Rights, as amended)
Inter-American Declaration of Principles on Freedom of Expression,
adopted by the Inter-American Commission on Human Rights
(20 October 2000)
International Covenant on Civil and Political Rights
(adopted 16 December 1966, entered into force 23 March 1976)
999 UNTS 171 (ICCPR)
International Covenant on Economic, Social and Cultural Rights
(adopted 16 December 1966, entered into force 3 January 1976),
993 UNTS 3 (ICESCR)
v
Universal Declaration of Human Rights
(adopted 10 December 1948) UNGA Res 217 A(III) (UDHR)
Declaration on Freedom of Communication on the Internet
(adopted on 28 May 2003) Council of Ministers of Europe
vi
Statutes
Act on Promotion of Information and Communication Network Utilization and Information
Protection 2009 (Korea)
Constitution of the Republic of India 1949 (India)
Copyright Act 2009 (Ghana)
Defamation Act 2013 (United Kingdom)
Digital Millennium Copyright Act 1998 (USA)
Information Act 2006 (Turtonia)
Online Dignity Protection Act 2015 (Turtonia)
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Cases
African Court on Human and Peoples’ Rights Cases
Zimbabwe Human Rights NGO Forum v Zimbabwe
(2006) AHRLR 128 (ACHPR 2006)
Zegveld v Eritrea
(2003) AHRLR 84 (ACHPR 2003)
European Court of Human Rights Cases
Ahmet Yildrim v Turkey
App no 3111/10 (ECtHR, 18 December 2012)
Balsyte- Lideikiene v Lithuania
Chauvy and others v France
App no 64915/01 (ECtHR, 29 September 2004)
Delfi AS v Estonia
App no 64569/09 (ECHR, 16 June 2015)
Editorial Board of Pravoye Delo and Shtekel v Ukraine
App no 33014/05 (ECtHR, 5 August 2011)
Gurtekin v Cyprus
App nos 60441/13, 68206/13, 68667/13 (ECtHR, 11 March 2014)
Gaweda v Poland
App no 26229/95 (ECtHR, 14 March 2002)
Handyside v United Kingdom
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Hinczewski v Poland
App no 34907/05 (ECtHR, 5 October 2010)
Intern Verlag GmbH and Klaus Beerman v Germany
App no 10572/83 (ECtHR, 20 November 1989)
Huvig v France
App no 11105/84 (ECtHR, 24 April 1990)
July v France
Karatas v Turkey
App no 23168/94 (ECtHR, 8 July 1999)
Klass v Germany
App no 5029/71 (ECtHR, 6 September 1978)
Kruslin v France
K.U. v Finland
App no. 2872/02,(ECtHR 2 December 2008)
Leroy v France
App no 36109/03 (ECHR, 2 October 2008)
Lindon, Otchakovsky-Laurens and July v France
Malone v UK
Perincek v Switzerland
Sürek v Turkey
ix
App no 26682/95(ECtHR, 8 July 1999)
The Sunday Times v United Kingdom
The Sunday Times v United Kingdom
Weber and Saravia v Germany
App no 54934/00 (ECtHR, 29 June 2006)
Worm v Austria
Inter-American Court of Human Rights Cases
Francisco Martorell v Chile
(IACtHR, 3 May 1996)
Herrera-Ulloa v Costa Rica
IACtHR (2 July 2004)
Kimmel v Argentina
(IACtHR, 2 May 2008)
Ricardo Canese v Paraguay
(IACtHR, 31 August 2004)
Tristán Donoso v Panamá
IACtHR (2009) Series C 193
United Nations Human Rights Committee Cases
Albert WomahMukong v Cameroon
Communication No 458/1991, UN Doc CCPR/C/51/D/458/1991
x
Dissanayake v. Sri Lanka
Communication No. 1373/2005, U.N. Doc. CCPR/C/93/D/1373/2005
87 JRT & WG Party v Canada
Communication No 104/1981 UN Doc CCPR/C/18/D/104/1981
Malcolm Ross v Canada
UN Doc CCPR/C/70/D/736/1997
Robert Faurisson v. France
Robert W. Gauthier v. Canada
Communication No 633/1995, U.N. Doc. CCPR/C/65/D/633/1995
Toonen v Australia
Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992
Sohn v Republic of Korea
Velichkin v Belarus
UN Doc. CCPR/C/85/D/1022/2001
Viktor Korneenko et al. v. Belarus
Communication No. 1274/2004 U.N. Doc. CCPR/C/88/D/1274/2004
Womah Mukong v Cameroon
UN Doc CCPR/C/51/D/458/1991
Supreme Court of the United States Cases
Abrams v United States
250 US 616
Brandenburg v Ohio
xi
395 U.S. 444
Chaplinsky v New Hampshire
315 US 567
Gompers v Buck's Stove & Range Co
221 US 418
Miller v California
413 US 15
Nebraska Press Association v Stuart
427 US 539
Schenck v United States
63 L Ed 470
Shelton v Tucker
364 US 479
Terminiello v City of Chicago
93 L Ed 1131
Virginia v Black
538 US 343
Watts v United States
22 L. Ed. 2d. 664
United Kingdom Cases
Silver and Others v United Kingdom
[1983] Series A no 61
Cases from other Supranational Courts and International Tribunals
xii
Google France, Google Inc v Louis Vuitton Malletier
SA C-236/08 (CJEU, 23 March 2010)
Other Court Cases
Catch the Fire Ministries Inc v Islamic Council of Victoria
(2006) VSCA 284
Devidas Ramchandra Tuljapurkar v State of Maharashtra and Ors
Criminal Appeal No. 1179 of 2010 (2015, SCC)
Dinesh Trivedi v Union of India
(1997) 4 SCC 306 (India)
District Registrar & Collector, Hyderabad v Canara Bank
(2005) AIR SC 186 (India)
Gobind v State of MP
(1975) AIR SC 1378 (India)
Kruslin v France
(1990) 12 EHRR 546
Leander v Sweden
(1987) 9 EHRR 433
L‟Oréal SA and Others v eBay
(2011) C-324/09
Md. Riazuddin Khan and another v Mahmudur Rahman and others
(2010) 39 CLC (AD)
Mostafizur Rahman v Bangladesh and others
(1991) 20 CLC (HCD)
Prosecutor v Simon Bikindi
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(2008) ICTR-01-72-T
Ramji Lal Modi v State of Uttar Pradesh
(1957) AIR SC 620
Roth v United States
(1957) 354 US 476
Sahara India Real Estate Corpn Ltd v SEBI
(2012) 10 SCC 603
Samresh Bose and Anr v Amal Mitra and Anr
(1985) 4 SCC 289
State v Chief editor, Manabjamin and others
(2005) 57 DLR (HCD) 359
State of Oregon v Earl A Henry
(1987) 732 P 2d 9
State of West Bengal v Subodh Gopal Bose
(1954) AIR SC 92
Zana v Turkey
(1997) 27 EHRR 667
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General Comments, Declarations, Directives, Recommendations and Guidelines
Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism,

Advisory Opinion OC-5/85, Inter-American Court of Human Rights Series A No 5 (13
November 2003)
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on
certain legal aspects of information society services, in particular electronic commerce, in the
Internal Market ('Directive on electronic commerce')
ECHR Press Release, „Chamber Judgment Leroy v France‟ (October 20008) ECHR/Press
681
European Union Regulatory Framework for Commerce (WTO, 18 June 2013)
ICCPR, „Concluding Observations on the Fourth Periodic Report of the United States of
America‟ (23 April 2014) CCPR/C/USA/CO/4
Human Rights Council resolution 20/8, The promotion, protection and enjoyment of human
rights on the Internet, A/HRC/20/L.13 (29 June 2012)
The Right to Privacy in the Digital Age, Report of the Office of the United Nations High
Commissioner for Human Rights‟ (30 June 2014) UN Doc A/HRC/27/37 („UNHRC June
2014 Report‟)
UN Committee on the Elimination of Racial Discrimination, „General Recommendation No

35 Combating Racist Hate Speech‟ (26 September 2013) UN Doc CERD/C/GC/35 („General
Recommendation No 35‟)
UNHRC, „Report of the Special Rapporteur on Freedom of Religion or Belief‟ (26 December
2013) UN Do c A/HRC/25/58
UNHRC „General Comment 34‟ in „Article 19: Freedoms of Opinion and Expression‟ (2011)
UN Doc CCPR/C/GC/34
UNHRC, „Report of the Special Rapporteur on the Promotion and Protection of the Right to
Freedom of Opinion and Expression‟ (16 May 2011) UN Doc A/HRC/17/27 („UNHRC May
2011 Report‟)
UNHRC, „Report of the Special Rapporteur on Contemporary Forms of Racism, Racial

Discrimination, Xenophobia and Related Intolerance‟ (6 May 2014) UN Doc A/HRC/26/49
paras 2, 16–19
UNHRC, „Report of the Special Rapporteur on the Promotion and Protection of the Right to
Freedom of Opinion and Expression‟ (10 August 2011) UN Doc A/66/290 („UNHRC August
2011 Report‟)
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Books and Academic Articles
John Locke, „Third Letter on Toleration‟ in Peter Laslett (ed) Two Treatises of Government
(CUP 1988) Steven J.
Heyman, „The First Duty of Government: Protection, Liberty and the Fourteenth
Amendment‟ (1991) 41 Duke L J
507, 515
O‟Flaherty, M., 2012, Freedom of Expression: Article 19 of the International Covenant on

Civil and Political Rights and the Human Rights‟ General Comment no. 34. Human Rights
Law Review, p.629
Sarah Joseph and others, „The International Covenant on Civil and Political Rights: Cases,
Materials and Commentary‟ (2nd Ed. OUP 2005) 483
Stijn Smet „Freedom of expression and the right to reputation: Human rights in conflict,‟
(2010) 26 (1) American University International Law Review 183-236, 192
Online sources
Article 19, „Prohibiting Incitement to Discrimination, Hostility or Violence‟ (21 December

2012) <http://www.article19.org/resources.php/resource/3572/en/prohibiting-incitement-to-
discrimination,- hostility-or-violence> accessed 17 January 2016
Community Standard < https://www.facebook.com/communitystandards#> accessed 05

October 2016).
Comprehensive Study on Cybercrime, Draft February 2013, UNODC

<https://www.unodc.org/documents/organized-
crime/UNODC_CCPCJ_EG.4_2013/CYBERCRIME_STUDY_210213.pdf> accessed 12
October 2016
Jodi Rudoren, „Leaderless Palestinian Youth, Inspired by Social Media, Drive Rise in
Violence in Israel‟ New York Times(13 October 2015)
<http://www.nytimes.com/2015/10/14/world/middleeast/leaderless-palestinian-
youthinspired-by-social-media-drive-a-rise-in-violence.html> accessed 17 January 2016
The Twitter Rules <https://support.twitter.com/articles/18311> accessed 5 October 2016
„Rabat Plan of Action on the Prohibition of Advocacy of National, Racial or Religious Hatred
that Constitutes Incitement to Discrimination, Hostility or Violence‟ (2012)
<http://www.ohchr.org/Documents/Issues/Opinion/SeminarRabat/Rabat_draft_outcome.pdf>
accessed 17 January 2016 („UNHRC Rabat Plan‟)
xvi
Report copyright infringement <https://support.twitter.com/forms/dmca> accessed 5 October
2016
Shilpa Samaratunge and Sanjana Hattotuwa, „Liking Violence: A Study of Hate Speech on
Facebook in SriLanka‟(2014) <http://www.cpalanka.org/liking-violence-a-study-of-hate-
speech-on-facebook-in-sri-lanka/> accessed 17 January 2016, 10
Susan Benesch, „Dangerous Speech: A Proposal to Prevent Group Violence‟ (12 January
2012)
<http://www.worldpolicy.org/sites/default/files/Dangerous%20Speech%20Guidelines%20Be
nesch%20January%20201 2.pdf> accessed 17 January 2016, 5; University of Oxford,
„Comparative Hate Speech Law: Memorandum‟ (2012) <http://www3.law.ox.ac.uk/denning-
archive/news/events_files/2012_-_LRC_Hate_Speech_Memorandum.pdf> accessed 17
January 2016
xvii
STATEMENT OF RELEVANT FACTS
Turtonia and Aquaria
Turtonia is a small democratic country with an elected government having an ethnically
homogeneous population. Turtonia is a member of the United Nations and has ratified the
International Covenant on Civil and Political Rights (ICCPR). Aquaria a neighbouring
country of Turtonia is also a democratic country and the majority of its citizens share the
same ethnicity and religion as the Turtonians.
Terrorist Organization ‘True Religion’
Since 2015, a religious extremist terror group called True Religion has become popular
among young people in Aquaria and has attacked mainstream religious institutions and
schools. The existence Of True Religion is not only in Aquaria and Turtonia but also in many
other countries including members of the UN Security Council.
Protesting group ‘Turton Power’
In Turtonia, a group called Turton Power claimed that the immigrants have disrupted the
economy and diluted the culture. Kola, Minister of Immigrants, permits Aquarian immigrants
because she believes Aquarian immigrants can contribute meaningfully to the Turtonian
society.
Social Media ‘Scoops’
Scoops is a social media platform based in Turtonia. Through the app, users building a profile
can upload photos and videos and tag the post with up to two topics of interest. Users can pay
to have their posts “boosted” so that they are seen by more users, the more they pay the more
users will see the content. Each user has a publicly-visible “influencer score” at the top of his
or her profile based on how many people have seen content from him or her. When asked
why the company built the “influencer score,” Scoops CEO said, “An „influencer score‟ is a
xviii
fun way to see how many people you can influence. And it also creates an incentive for
posters to create compelling content and for readers to keep sharing content when they see it,
which is important to us, because whether people are sharing news, an opinion, or just the
latest gossip, we want people to hear it first on Scoops.” The higher your influencer score, the
less you have to pay to have your content boosted. Scoops‟ Terms of Service that specify that
they do not allow harmful and malicious content such as spam, non-consensual sharing of
intimate images, hate speech or child exploitative imagery.
News network ‘XYZ News’
XYZ News is a popular TV news network in Turtonia. XYZ is well-respected in Turtonia and
neighbouring countries for being a reliable and objective news source. XYZ maintains a
Scoops account called “XYZ News.”
Peaps and the post of naked photo with description
Niam Peaps is a Turton Power member who, on May 1, created a Scoops account with the
screen name XYZ News followed by 12 i.e. „XYZ News12‟ though he has no affiliation with
XYZ News. At noon on May 2, Peaps posted an image with caption [Exhibit A] appearing
to show naked Kola with Parkta in a hotel room. Neither person in the image appears to be
aware of the camera. Peaps selected “XYZ News” as the Topic of Interest for the post, and
because the “XYZ News12” account had no friends, the post showed to 20 Scoops users who
had listed “XYZ News” as a Topic of Interest.
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Exhibit A
The caption of the post started
with“XYZ NEWSFLASH: KOLA
IMPLICATED IN SEX-FOR-VISA
SCANDAL!” On the post, he claimed
that Minister Kola has approved visas
for 23 members of terrorist group on
the request of her secret lover. The post
also alleged that Kola is of favorable
immigration policy towards terrorist group because of her relation with Parkta. It also
contains many other matters against Kola.
Events After the post
By 5:00pm, XYZ declined any connection with the post and the XYZ News12 account. Also
at 5:00pm, Kola‟s office by a statement denounced the authenticity of the post calling the
post “a horrific lie with no basis in fact,” and asserting that Kola's head had been
photoshopped onto a stranger's body in the image.
In the wake of the post, Kola faced harassment and death threats online and offline. At
7:00pm on May 2, Kola‟s staff reported the post to Scoops through Scoops‟ online reporting
form as a violation of Scoops‟ terms of service. Scoops responded with an electronic
message.
On May 3, at 11:00 a.m., Kola‟s legal counsel submitted a letter to Scoops, threatening to
legal action . Scoops removed the post and all shares of the post at 1:00pm on May 5, 50
hours after the submission of the complaint. At that point, it had 21,000 shares and 145,000
views.
xx
In such circumstances,On May 4 and May 5, protesters gathered outside Kola‟s office calling
for her resignation.Protesters chanted, “No more Aquarians!” and many held signs most of
which were unrelated to the post like “Sleeping with the enemy!” “No More Sex-For-Visas!”
or “No Visas for Your Lover‟s Terrorists!”
On the evening of May 5, two Aquarian immigrants were beaten to death by an angry mob of
at least 10 people that were yelling anti-Aquarian epithets.
Background of the Online Dignity Protection Act of 2015
The Online Dignity Protection Act of 2015 was passed in response to a growing problem of
Non Consensual Sharing of Intimate Images. Pictures and videos taken with the expectation
of privacy could be shared publicly online through social media. Research found that it
should be illegal for someone to share an intimate image they have been sent. It is reported
that Teenage girls committed suicide for non-consensual sharing of nude images of
themselves.
Background of the Information Act of 2006
The Information Act of 2006 was passed after the distribution of fake documents, which
purported to be real, private documents, ahead of the 2005 Turtonian General Elections It
caused civil unrest along with a decrease in public faith in the democratic process The
government passed this law in order preserve the integrity of the democratic process and
avoid as well as to safeguard the peace.
Peaps’ Prosecution and findings of the trial court
Peaps is convicted of distributing an image of Kola in violation of the Online Dignity
Protection Act of 2015 and sentenced to two years' imprisonment and no fine. He is also
convicted of inciting violence, or being reckless through false information in violation of
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Section 1(b) of the Information Act of 2006 and was sentenced to a fine equivalent of
100,000 USD.
At trial, Peaps maintained that he wanted to break the story first to maximize his influence
score on Scoops. Based on evidence at trial, the trial court found amongst others: That the
image showed “intimate parts” and therefore qualified as an “image” covered by the Online
Dignity Protection Act; That the photo is a photoshopped one; That by publishing the image
on Scoops, Peaps knowingly distributed an image of Kola appearing to show her intimate
parts. That at the time he distributed the image, Peaps knew or consciously disregarded a
substantial and unjustified risk that Kola had not consented to the disclosure; That Peaps was
not entitled to protection under section (3)(b) of the ODPA.
Scoops prosecution and findings of the trial court
Scoops is convicted of distributing an image of Kola in violation of the Online Dignity
Protection Act of 2015 and sentenced Scoops to a fine equivalent to 200,000 USD. He is also
convicted of knowingly communicating false information in violation of Section 1(a) of the
False Information Act of 2006 and sentenced to a fine equivalent of 100,000 USD. Based on
evidence at trial, the trial court made the additional findings that Scoops received notice of
the image at 7:00 p.m., on May 2, when Kola's staff reported the image as “a nude image of
me shared without my consent.” After that report, Scoops knew or consciously disregarded a
substantial and unjustified risk that Kola had not consented to the disclosure. Trial court also
found that Scoops failed to remove the post within a reasonable time after receiving notice of
the Peaps post submitted by Kola‟s legal counsel on May 31 at 1:00 a.m.
Appeal
The Supreme Court of Turtonia, having discretionary review, declined to consider Peaps‟ and
Scoops‟ appeals.
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STATEMENT OF JURISDICTION
Niam Peaps and Scoops (the Applicants) appeal to this Honourable Court, the
Universal Freedom of Expression Court. Their claims relate to the freedom of expression
codified in Article 19 of the Universal Declaration of Human Rights and Article 19 of the
International Covenant on Civil and Political Rights and. This Honourable Court has
jurisdiction as complainants have exhausted all domestic remedies.
This Court, therefore, has jurisdiction over the aforementioned issues. The Republic
Of Aquaria requests this Honourable Court to deliver a judgment in accordance with relevant
international law, including the Universal Declaration of Human Rights, the International
Covenant on Civil and Political Rights and principles of international law.
xxiii
QUESTIONS PRESENTED
1A. WHETHER TURTONIA‟S PROSECUTION OF PEAPS UNDER THE ODPA VIOLATES ARTICLE 19
OF THE ICCPR?
1B. WHETHER TURTONIA‟S PROSECUTION OF SCOOPS UNDER THE ODPA VIOLATES ARTICLE
19 OF THE ICCPR?
2A. WHETHER TURTONIA‟S PROSECUTION OF PEAPS UNDER THE IA VIOLATES ARTICLE 19 OF
THE ICCPR?
2B. WHETHER TURTONIA‟S PROSECUTION OF SCOOPS UNDER THE IA VIOLATES THIS SAME
INTERNATIONAL PRINCIPLE?
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SUMMARY OF ARGUMENTS
1A. THE TURTONIA’S PROSECUTION OF PEAPS UNDER THE ODPA DOES NOT VIOLATE
ARTICLE 19 OF THE ICCPR
Turtonia‟s Prosecution of Peaps under the ODPA does not violate Article 19 of
ICCPR. Because on the first place, the Act of Peaps violates ODPA as Peaps directly violated
ODPA since it shows intimate parts and therefore qualified as an “image” covered by the
ODPA. Also, the act of Peaps does not fall under any exception provided by ODPA.
Since ODPA was made in compliance with ICCPR, the prosecution of Peaps under
ICCPR because of violating ODPA was absolutely lawful as what Peaps did is not exercise of
freedom of expression rather it caused an unrest condition in Turtonia.
This prosecution also passes the three tier test provided by Article 19 of ICCPR in the
following way- firstly, ODPA is prescribed by law because the restriction in Section 1 of
ODPA is both accessible and comprehensible on its face and has a basis in domestic law
established by Turtonia‟s ratification of ICCPR. Secondly, ODPA pursues a legitimate aim
because all states have a legitimate interest in ensuring public order and preventing violence
and religious unrest within their borders and finally, ODPA is necessary to achieve Turtonia‟s
legitimate aims because Turtonia reasonably adopted ODPA to prevent further foreseeable
violence as a result of sharing of intimate images online. Therefore, the prosecution under
ODPA was done in compliance with Article 19 of ICCPR.
1B. TURTONIA’S PROSECUTION OF SCOOPS UNDER THE ODPA DOES NOT VIOLATE
The prosecution did not violate Scoops right to freedom of expression, as it was
prescribed by law, in pursuit of a legitimate aim, and necessary in a democratic society. The
prosecution was prescribed by law as Scoops could foresee responsibility for facilitating post
containing the malicious image, which violates an express legislation on such issues, namely
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the ODPA. Section-1 of ODPA explicitly provides that no individual, organization or other
publisher may not knowingly distribute an image of another person who is identifiable from
the image itself with their intimate parts being disposed.
Holding intermediaries, such as Scoops, liable for hosting such harmful contents
pursued the legitimate aims of protecting public order and preserving the rights or reputations
of others. This is due to the wide reach and extensive spread of communications facilitated
and enabled by intermediaries and it is the publisher‟s responsibility to monitor its portal‟s
contents. As a social media platform and host it was Scoops responsibility to ensure that the
contents that it published did not infringe upon the rights of others.
There was a pressing social need to prosecute Scoops for its failure to regulate the
harmful posts. First, Scoops is an active intermediary as it exercises control over its user
content and was aware of the controversial nature of post. Secondly, Scoops commercial
interest in hosting posts justifies requiring Scoops to regulate those posts. Thirdly, internet-
related misconduct is sanctioned most effectively through the imposition of responsibility on
intermediaries as they have the technical means to detect hate speech and manage it quickly.
While Scoops did not wholly neglect its duty to monitor and remove the harmful image, it did
so after a considerable amount of time, which enabled the post for its widespread circulation,
and the action taken by Scoops was insufficient given the severity of post.
Lastly, the punishment imposed upon Scoops was proportionate. If the punishment
imposed was of a smaller penalty, it could have been to be proved insufficient in dissuading
Scoops or any other social media platform from distributing any malicious image in the
future.
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2A. TURTONIA’S PROSECUTION OF PEAPS UNDER THE IA DOES NOT VIOLATE ARTICLE 19
OF THE ICCPR
Turtonia properly prosecuted Peaps for his violations of the Information Act of 2006
for inciting violence through false information. The rights to freedom of expression and
privacy are not absolute. These rights may yield to a state‟s duty to protect society from hate
speech. The State‟s primary duty is to protect its citizens „from injury and violence‟, so that
„the rights and freedoms set forth‟ in a democratic society „can be fully realized‟. There was
clear indication of internal unrest in Turtonia His prosecution met the legitimate state
interests of preventing disorder in society and protecting the reputation and rights of others.
The government passed this law in order to preserve the integrity of the democratic process
and to safeguard the peace.
Omeria‟s prosecution of Umani was necessary to prevent further societal disorder. A
restriction on freedom of expression is necessary when it implies the existence of a pressing
social need,is prescribed by law,is precise, is proportionate to a legitimate state aim, and
contains adequate safeguard. The IA is sufficiently precise as Peaps could reasonably foresee
the limits to online speech. There was a pressing social need to prosecute Peaps as his posts
in Scoops were hate speech. Peaps‟s appeal to the Supreme Court of Turtonia demonstrates
that the IA has adequate safeguards.
Hate speech requires an intention to incite and a likelihood that the advocacy will
incite unlawful action, but also that the likely unlawful action be imminent .Peaps post of
photoshopped image, the resignation of Kola,offensive slogans in the protest related to the
image posted by Peaps and later killing of two Aquarian by angry mob of Turtonia clearly
shows about the internal violence. Therefore it can be said that, there was a intention to incite
a violence and it was direct or imminent.
xxvii
2B. TURTONIA’S PROSECUTION OF SCOOPS UNDER THE IA DOES NOT VIOLATE ARTICLE
19 OF THE ICCPR
The content generated by SCOOPS does not fall within the immunity clause under IA.
As per the E-Commerce Directives (ECD) in the European Union, an intermediary is exempt
from liability associated with the communications of a third party when the operator does not
initiate the transmission of the communication does not select the receiver of the
transmission, and does not select or modify the information within the transmission. Scoops
had actual knowledge to the infringing activity after the report of the Kola‟s stuff yet did not
remove the offensive content expeditiously under OSP‟s liability imposed by IA.
Scoops has also violated its terms of policy as it did not follow through the specific
policy set out by itself in the event of any occurrences similar to that of Kola.
The rights under Article 19 of the ICCPR are not absolute and may be subject to restrictions.
In any event, the prosecution of Scoops under the IA was justified, as it was prescribed by
law, in pursuit of a legitimate aim, and necessary in a democratic society.
A restriction will be regarded as prescribed by law if it is imposed by the domestic
law and it must be accessible and foreseeable. In the present case, IA was sufficiently precise
enough and permissibly wide to keep pace with the changing technological advancements;
foreseeable enough to regulate the conduct of its citizens; is pursuant to a legitimate aim to
uphold public order after the chaotic events caused because of the publication of the image;
was necessary in a democratic society as to prevent any deterioration of the law and order
situation of the society after the events that killed two Acquarian as it is the paramount duty
of the state to protect its people.
xxviii
ARGUMENTS ADVANCED
ISSUE 1A : TURTONIA’S PROSECUTION OF PEAPS DOES NOT VIOLATE ARTICLE 19

OF THE ICCPR
1A.1. The Act of Peaps violates ODPA
Peaps directly violated ODPA since it shows intimate parts and therefore qualified as an
“image” covered by the ODPA.1 Also, Peaps knowingly distributed the image on Scoops2 of
which Kola had no consent and also, Peaps cannot disregard the possibility of potential risk
that was substantial and unjustified. For Peaps, it was quite foreseeable that this act might
harm Kola and also become a threat to the state security.
1A.1.1. The Act of Peaps does not fall under any exception provided by ODPA
Peaps was prosecuted because he distributed an image of Kola and that particular act
does not fall under section 3(b) of ODPA which disqualifies him being protected under the
exception clause. This clause states that disclosures made in public interest is entitled to
indemnity.
The „principle of public interest‟ established by the jurisprudence is that there is more
latitude in the exercise of freedom of expression in the area of political speech or debate, or in
matters of public interest, or in cases of criticism of politicians. But in the present case, this
should not be interpreted as allowing the publication of any unverified defamatory statement.
This principle simply means that in the aspects mentioned above, and in respect of
politicians, certain exaggeration in allegations of fact or even some offending effect should be
tolerated and should not be sanctioned. But the principle does not mean that the reputation of
politicians is at the mercy of the mass media or other persons dealing with politics, or that
1
Online Dignity Protection Act, 2015 s 2
2
Compromis 12.3.5
1
such reputation is not entitled to the same legal protection as that of any other individual.
Reputation is a sacred value for every person including politicians and is safeguarded as a
human right under the Convention for the benefit of every individual without exception.3
Since distribution of Kola‟s photo shopped image caused unrest situation in Turtonia and also
harmed her right to privacy, this clearly does not fall under the exception provided in 3(b) of
ODPA and therefore, Peaps is liable under ODPA.
Also, „Public interest‟ must be taken into account to determine the pressing social
need to interfere with free speech.4 For instance, in Beauharnais v Illinois,5 the Court took
into account the fact that, from 1837 to 1951, Illinois had been the scene of exacerbated
tension between races often flaring into violence and destruction, and accordingly, it noted
that the State had a pressing social need to curb false and malicious insult of racial and
religious groups made in public places. Therefore, it upheld the Illinois law making it illegal
to publish any racist speech leading to breach of peace. 6 Connecting this case to the present
facts, it must be noted that Peaps added to the intolerant situation of Turtonia where already
there was an unrest condition prevailing regarding the influx of immigrants and Peaps should
have cared enough about this circumstance.
1A.2. The Prosecution of Peaps does not violate Article 19 of ICCPR
Peaps plainly violated Article 19 of ICCPR by violation of ODPA because ODPA was
enacted in compliance with ICCPR. The spirit of Article 19 is to protect freedom of
expression. On plain reading, what Peaps did is not exercise of freedom of expression rather
it caused an unrest condition in Turtonia.
3
Case of Lindon, Otchakovsky-Laurens App No 21279/02 (ECHR 22 October, 2007); July v.France App No
36448/02 (ECHR 24 November 2005)
4
The Sunday Times v United Kingdom (1979-80) 2 EHRR 245, para 67.
5
343 US 250 (1952).
6
Virginia v Black 538 US 343 (2003); Ramji Lal Modi v State of Uttar Pradesh AIR 1957 SC 620 (India)
2
Article 19 of ICCPR, Paragraph 3 expressly stresses that the exercise of the right to
freedom of expression carries with it special duties and responsibilities and for this reason
certain restrictions on the right are permitted which may relate either to the interests of other
persons or to those of the community as a whole.7 Furthermore, while freedom of expression
is a protected right,8 it is not absolute9and cannot be used to abuse the rights of others.10 The
ICCPR permits restrictions on expression that protect the right to honor, reputation, and
public order.
The prosecution of Peaps under the ODPA did not violate Peaps‟ rights to freedom of
expression and privacy as it was prescribed by law, in pursuit of a legitimate aim, and
necessary in a democratic society.
ODPA‟s restriction on Non Consensually Shared Intimate Images meets this three-part
test and is therefore a valid restriction on both freedom of expression and religion.
1A.2.1. ODPA is prescribed by law
A restriction is generally prescribed by law if the restriction has a basis in domestic law and
is accessible, foreseeable, and precise.11 The restriction in Section 1 of ODPA is both
accessible and comprehensible on its face and has a basis in domestic law established by
7
UNHCR General comment No. 34 Article 19: Freedoms of opinion and expression General remarks
8
Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR) art 19;
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March
1976) 999 UNTS 171 (ICCPR) art 19; American Convention on Human Rights (adopted 22 November 1969,
entered into force 18 July 1978) 1144 UNTS 123 (ACHR) art 13; African Charter on Human and Peoples‟ Rights
(adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58 (African Charter) art 9;
Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human
Rights, as amended) (ECHR) art 10
9
1976) 999 UNTS 171 (ICCPR) art 19(3); Zegveld v Eritrea (2003) AHRLR 84 (ACHPR 2003), para 59; Tristán
Donoso v Panamá IACtHR (2009) Series C 193, para 110
10
1976) 999 UNTS 171 (ICCPR) art 19(3); Tristán Donoso v Panamá IACtHR (2009) Series C 193, para 110;
Rights, as amended) (ECHR) art 14
11
The Sunday Times v. United Kingdom, App no 6538/74 (ECtHR, 26 April 1979).
3
Turtonia‟s ratification of ICCPR. On this note it must be established that restrictions must be
provided by law. Law may include laws of parliamentary privilege 12and laws of contempt of
court.13 Then again, it is for the State party to demonstrate the legal basis for any restrictions
imposed on freedom of expression.14 ODPA cannot be considered unforeseeable in light of
the growing problem of Non Consensual Sharing of Intimate Images (commonly known as
“revenge porn”) in Turtonia.15 Recent research commissioned by Turtonia Women's Aid
found that more than two thirds (79%) of Turtonian residents believed it should be illegal for
someone to share an intimate image they have sent16 therefore, is accessible, foreseeable,
and has a basis in domestic law and so is prescribed by law.
1A.2.2. ODPA pursues a legitimate aim
All states have a legitimate interest in ensuring public order and preventing violence and
religious unrest within their borders. In fact, ICCPR require states to fulfil the obligation to
respect freedoms of opinion and expression is binding on every State party as a whole.17
States parties should take account of the extent to which developments in information
and communication technologies, such as internet and mobile based electronic information
dissemination systems, have substantially changed communication practices around the
world.18 Furthermore, the threat or presence of actual violence as a result of these violation
12
Robert W. Gauthier v. Canada, Communication No 633/1995, U.N. Doc. CCPR/C/65/D/633/1995 (5 May
1999)
13
Dissanayake v. Sri Lanka, Communication No. 1373/2005, U.N. Doc. CCPR/C/93/D/1373/2005 (22 July
2008)
14
Viktor Korneenko et al. v Belarus, Communication No. 1274/2004, U.N. Doc. CCPR/C/88/D/1274/2004
(2006).
15
Compromis 10.1
16
Compromis 10.1
17
18
UNHCR General comment No. 34 Article 19: Freedoms of opinion and expression General remarks Paragraph
15
4
of online protection further supports action on the part of the Turtonian government, as the
government has a responsibility to promote the wellbeing of all the Turtonian people.
1A.2.3.ODPA is necessary to achieve Turtonia’s legitimate aims
Turtonia reasonably adopted ODPA to prevent further19 foreseeable violence as a result of
sharing of intimate images online. Liberal theorists identified freedom of expression as
essential to democracy and good governance.20 Further this law was enacted supporting the
very real concern by the Turtonian government that some regulation of offensive
expression was necessary to ensure public safety. The potential for extreme violence caused
by similar videos and postings on social media portals throughout the country demonstrates
the ODPA‟s necessity.
19
Compromis 10.1
20
O‟Flaherty, M., 2012, Freedom of Expression: Article 19 of the International Covenant on Civil and Political
Rights and the Human Rights‟ General Comment no. 34. Human Rights Law Review, p.629
5
ISSUE 1B: TURTONIA’S PROSECUTION OF SCOOPS UNDER THE ODPA DOES NOT
VIOLATE ARTICLE 19 OF THE ICCPR
Social media, as an unprecedented medium for public discourse, fulfills an important
democratic function.21 Whilst states have a duty to regulate their citizens‟ conduct, social
media platforms also shoulder certain responsibilities.22 But Scoops failed to meet these
required standards and thus was held liable for the distribution of the image of a Turtonian
citizen in violation of the Online Dignity Protection Act, 2015 (hereinafter referred to as
ODPA).23
1B.1. Scoops freedom of expression was properly restricted pursuant to its duty to
monitor and remove derogatory post from its site
Third-party publishers fulfil the essential function of imparting „information and ideas on all
matters of public interest‟.24 Nonetheless, such parties must disseminate information in a
manner that is consistent with their „duties and responsibilities‟;25 media sources are liable for
failing to properly and expediently monitor unlawful speech.26 Restrictions are permissible
when they are prescribed by law, entail a legitimate purpose, and are necessary to a
democratic society.27
21
UNHRC, „Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of
Opinion and Expression‟ (16 May 2011) UN Doc A/HRC/17/27 („UNHRC May 2011 Report‟) para 2
22
Ibid. Para- 54
23
Compromis 13.1
24
Delfi AS v Estonia App no 64569/09 (ECtHR, 16 June 2015), para 132
25
Sürek v Turkey App no 26682/95 ( ECHR 1999-IV 353), para 36
26
Ibid at 94
27
Ibid at 24
6
1B.1.1. The restriction of Scoops expression was appropriately prescribed by law
A restriction is generally prescribed by law if the restriction has a basis in domestic law and
is accessible, foreseeable, and precise.28 The restriction in Section 1 of ODPA specifically
provides that any individual, organization or other publisher may not knowingly distribute an
image of another person who is identifiable from the image itself whose intimate parts are
exposed, when the actor knows there‟s substantial risk that the depicted person has not
consented to such disclosure (subject to some exceptions) as such, is both accessible and
comprehensible on its face and has a basis in domestic law as Turtonia has ratified ICCPR. It
has provided for the specific circumstances when the law will be applicable and the
punishment that has to be awarded, and therefore, precise in its nature.29 ODPA cannot be
considered unforeseeable in light of the growing problem of Non Consensual Sharing of
Intimate Images in Turtonia, which was shared primarily through social media platforms30
and as Scoops is a social media platform, it should have had considerable knowledge of the
situation and thus the legislation was foreseeable.
Scoops responsibility to monitor and expediently remove speech that violated the Act
was foreseeable even if the Act did not state such duties. A law may satisfy the requirement
of foreseeability even when a professional entity has to obtain legal advice to determine the
risks and consequences of a given action.31 The provision of the statute expressly prohibits
the distribution of any such image as previously mentioned and such restriction was
prescribed by law.
28
The Sunday Times v United Kingdom, App no 6538/74 (ECtHR,26 April 1979)
29
Compromis 10.2.
30
ibid at 10.1
31
7
1B.1.2. Prosecuting Scoops met the legitimate purposes of safeguarding public order
and protecting the reputation and rights of Kola
The Act must promote a legitimate interest in restricting the expression of third-party
publishers.32 Such expression may be restricted to protect public order,33 as well as the
reputation and rights of others. It is a publisher‟s responsibility to monitor its portal‟s
contents.34
The restriction on Scoops expression entails the legitimate purpose of protecting the
reputation and rights of others,35in this case Kola, the Turtonian Minister of Immigration, also
a citizen of Turtonia. Here, Scoops facilitated the publication and distribution of the image in
question, which has led to a disruption of public order,36 the responsibility of which Scoops
cannot deny. Furthermore, the prosecution is also valid because Scoops had put down the
post after being threatened with the legal notice,37 which in turn means they ignored to
remove the image even after knowing its nudity. Turtonia has a legitimate interest in ensuring
that Scoops adequately fulfils its duties and responsibilities to monitor and remove published
image and the information displayed in connection therewith that are harmful to others.
32
The Sunday Times v United Kingdom (1979) 2 EHHR 245, para 57
33
Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR) art
29(2); International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23
March 1976) 999 UNTS 171 (ICCPR) art 19(3); Convention for the Protection of Human Rights and
Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 10(2)
34
Rights, as amended) (ECHR) art 10(2)
35
36
Compromis 9.4-9.6
37
Ibid, para- 9.2.
8
1B.1.3. Prosecuting SCOOPS was necessary to combat the significant risk that
SCOOPS took by publishing the image
It has been held in the case of Delfi AS v Estonia held that the proportionality of a
restriction on media websites is determined by the context of published statements, the
measures taken to prevent or remove harmful statements, the liability of the actual authors of
the speech, and the consequences of liability.38 Furthermore it has been held in the case of
K.U. v Finland that although, freedom of expression and confidentiality of communications
are the main considerations and internet services must have a guarantee that their own
privacy and freedom of expression will be respected, such guarantee cannot be absolute and
must yield on occasion to other legislative imperatives, such as prevention of disorder or
crime or the protection of rights and freedom of others.”39
So it is Turtonia‟s responsibility to ensure that Scoops is held liable for the
dissemination of this provocative image to meet Turtonia‟s legitimate aims of public order,
and the protection of the rights and reputation of others. They knew this image had the
potential to cause disruption in public order and the law that was in force prohibiting the
circulation of any such image. In failing to take proper measures, Scoops has acted
negligently in upholding the true spirit of freedom of expression.
Additionally, a media source must be aware of the content that it publishes; such
awareness is a key element in the assessment of proportionality.40Although, Scoops did not
wholly neglect its duty to monitor and remove the harmful image, it did so after almost three
days after it was posted, fifty hours after it received the legal notice from Kola‟s lawyer, but
at that point, it had spread throughout the country.41 Whatever procedure Scoops had
38
Application no; 64569/09 (ECtHR, 16 June 2015), para 142
39
K.U. v Finland App No. 2872/02, (ECHR 2 December 2008) para 49
40
41
Compromis 8.1 and 9.2
9
regarding detection and removal of malicious contents had proved to be insufficient, 42 based
on the fact that before the ultimate removal of the post, it had 21,000 shares and 145,000
views.43 Scoops could have employed a mechanism of automatic deletion of posts based on
certain words,44 and should have exercised a greater degree of caution.
1B.2. The prosecution was necessary in a democratic society
An interference is necessary in a democratic society if it:
(1) corresponds to a pressing social need; and
(2) is proportionate to the legitimate aims pursued.45
There was a pressing social need to prosecute Scoops for failing to regulate the post
containing the harmful image. To determine intermediary liability, the ECtHR and the CJEU
provide the following factors: the nature of the intermediary; the measures the intermediary
has taken against the user; and the nature of its user content.46
Firstly, Scoops is an active intermediary. Liability may be imposed on active
intermediaries. An intermediary is active where it exercises control over its user content, and
has knowledge of its controversial nature. While Scoops does not generate its own content,
Scoops nevertheless exercises control over its user content.47 Since, Scoops generally serves
as an intermediary with not generating its own content, it nevertheless exercises control over
42
.Delfi AS v Estonia App no 64569/09 (ECtHR, 16 June 2015), para 155
43
Compromis 9.2
44
.Delfi AS v Estonia App no 64569/09 (ECtHR, 16 June 2015), para 155
45
UNHRC, „General Comment 34‟ (12 September 2011) UN Doc CCPR/C/GC/34 („General Comment 34‟) para
22, 33, 34 ; UNHRC, „Report of the Special Rapporteur on the Promotion and Protection of the Right to
Freedom of Opinion and Expression‟ (17 April 2013) UN Doc A/HRC/23/40 („UNHRC April 2013 Report‟)
para 29
46
See, Delfi AS v Estonia App no 64569/09 (ECtHR, 16 June 2015), para 142-143. Also see, Google France,
Google Inc v Louis Vuitton Malletier SA C-236/08 (CJEU, 23 March 2010) („Google France‟) para 114
47
See, Delfi AS v Estonia App no 64569/09 (ECtHR, 16 June 2015), para 145-146
10
its user content through an algorithm to spread any content of any particular subject to other
Scoops user and also uses human review in reaching the right users.48
Secondly, Scoops generates profits from its user content, through the option of „boost‟
to enable a user to spread his content to more users.49 In this regard, the ECtHR has
emphasized the commercial interest of intermediaries in hosting posts, when imposing
liability.50 As Scoops very business is the hosting of its user content, this commercial interest
justifies requiring Scoops to regulate those harmful and malicious posts.
Finally, the punishment imposed upon Scoops was proportionate. Proportionality
requires that states place no greater limitations on rights than necessity to achieve the
legitimate aim.51 The nature and severity of the punishment are relevant in determining the
proportionality pursued to the legitimate aim.52 The punishment imposed was proportionate
as a smaller penalty would be insufficient in dissuading Scoops from distributing any
malicious image in the future, as Scoops was already cognizant of repercussions and
ramifications the image had on society, which included the death of two Aquarian
immigrants, beaten to death by an angry mob.53 Thus it was necessary for Turtonia to
prosecute Scoops and hold it liable for violation of ODPA.
48
Compromis 5.1
49
Ibid
50
,Delfi AS v Estonia App no 64569/09 (ECtHR, 16 June 2015), para 112-113, 126
51
UNHRC, „Report of the Special Rapporteur on the Promotion and Protection of Human Rights and
Fundamental Freedoms While Countering Terrorism‟ (28 December 2009) UN Doc A/HRC/13/37 para 17
52
Leroy v France App no 36109/03 (ECtHR, 2 October 2008) („Leroy‟) para 47; Balsyte-Lideikiene v Lithuania
App no 72596/01 (ECtHR, 4 December 2008) („Balsyte-Lideikiene‟) paras 83–85; Perincek v Switzerland App
no 27510/08 (ECtHR, 15 October 2015) („Perincek‟) para 124
53
Compromis 9.1
11
ISSUE 2A: TURTONIA’S PROSECUTION OF PEAPS UNDER THE IA DOES NOT VIOLATE
2A.1. Turtonia properly prosecuted PEAPS under the IA because PEAPS incited
violence and thus incited civil unrest through false information
The rights to freedom of expression54 and privacy55 are not absolute56. These rights may yield
to a state‟s duty to protect society from hate speech.57 In executing this duty, social media
poses new challenges. This is because social media intermediaries are a „powerful and
virulent platform‟. The State‟s primary duty is to protect its citizens „from injury and
violence‟,58 so that „the rights and freedoms set forth‟ in a democratic society „can be fully
realized‟.59 The Respondent submits that Turtonia properly prosecuted Peaps for inciting
violence.
54
UDHR (adopted 10 December 1948) UNGA Res 217A (III) art 19; ECHR (adopted 4 November 1950,
entered into force 3 September 1953) 213 UNTS 1932 art 10; ICCPR (adopted 16 December 1966, entered into
force 23 March 1976) 999 UNTS 171 art 19(2); ACHR (adopted 22 November 1969, entered into force 18 July
1978) art 13; ACHPR (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58 art 9
55
UDHR art 12; ECHR art 8; ICCPR art 17(1); ACHR art 11; ACHPR Art. 6
56
UDHR art 29(2); ECHR (adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 1932
arts 8(2) and 10(2); ICCPR arts 17(1) and 19(3); ACHR (adopted 22 November 1969, entered into force 18 July
1978) arts 11(2) and 13(2); ACHPR (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM
58 art 9(2); HRC,„General Comment 34‟ (12 September 2011) UN Doc CCPR/C/GC/34 („General Comment
34‟) para 21; Recommendation CM/Rec(2014)6 of the Committee of Ministers to Member States on a Guide to
Human Rights for Internet Users (adopted 16 April 2014) para 2
57
ICCPR Art 20(2). See also ICERD (adopted 21 December 1965, entered into force 4 January 1969) art 4;
ACHR art 13(5); UN Economic and Social Council, „Report of the Special Rapporteur on the Promotion and
Protection of the Right to Freedom of Opinion and Expression‟ (30 January 2002) UN Doc E/CN4/2002/75 para
64; UNHRC, „Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of
Opinion and Expression‟ (16 May 2011) UN Doc A/HRC/17/27 („UNHRC May 2011 Report‟) para 25;
UNHRC, „Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of
Opinion and Expression‟ (10 August 2011) UN Doc A/66/290 („UNHRC August 2011 Report‟) para 26;
UNHRC, „Rabat Plan of Action on the Prohibition of Advocacy of National, Racial or Religious Hatred that
Constitutes Incitement to Discrimination, Hostility or Violence‟ (2012)
<http://www.ohchr.org/Documents/Issues/Opinion/Sem inarRabat/Rabat_draft_outcome.pdf> accessed 17
January 2016 („UNHRC Rabat Plan‟) para 14; IACHR, „Freedom of Expression and the Internet‟ (2013)
CIDH/RELE/IN F11/13 („IACHR 2013 Report‟) para 135
58
John Locke, „Third Letter on Toleration‟ in Peter Laslett (ed) Two Treatises of Government (CUP 1988);
Steven J.Heyman, „The First Duty of Government: Protection, Liberty and the Fourteenth Amendment‟ (1991)
41 Duke L J 507, 515
59
Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR) Art 28
12
2A.2. The prosecution was justified
The prosecution of PEAPS under the IA was justified as it was:
(a) prescribed by law;
(b) in pursuit of a legitimate aim; and
(c) necessary in a democratic society.
These requirements have been endorsed by the UNHRC60, the IACtHR61, the ECtHR,
and the ACommHPR. The freedom of expression is not a right to be enjoyed in isolation.62
The freedom of expression impliedly carries the rights of the individual to express self as
against the right of the public and others.63
2A.2.1. The prosecution was prescribed by law.
A statute is prescribed by law if: (1) it is sufficiently precise; (2) it contains adequate
safeguards; and (3) any prosecution under it had a legal basis.64
60
Womah Mukong v Cameroon UN Doc CCPR/C/51/D/458/1991 (HRC, 10 August 1994) para 9.7; Sohn v
Republic of Korea UN Doc CCPR/C/54/D/518/1992 (HRC, 19 July 1995) para 10.4; Malcolm Ross v Canada
UN Doc CCPR/C/70/D/736/1997 (HRC, 18 October 2000) („Malcolm Ross‟) para 11.2; Velichkin v Belarus UN
Doc CCPR/C/85/D/1022/2001 (HRC, 20 October 2005) para 7.3; UNHRC, „Report of the Special Rapporteur
on the Promotion and Protection of the Right to Freedom of Opinion and Expression‟ (17 April 2013) UN Doc
A/HRC/23/40 („UNHRC April 2013 Report‟) para 29
61
Francisco Martorell v Chile (IACtHR, 3 May 1996) para 55; Herrera-Ulloa v Costa Rica, Preliminary
Objections, Merits, Reparations and Costs Judgment (IACtHR, 2 July 2004) para 120; IACHR, „Report of the
Special Rapporteur for Freedom of Expression‟ (2009) OEA/SER L/V/II Doc 51 para 626
62
Stijn Smet „Freedom of expression and the right to reputation: Human rights in conflict,‟ (2010) 26 (1)
American University International Law Review 183-236, 192
63
Robert Faurisson v. France, Communication No. 550/1993, U.N. Doc. CCPR/C/58/D/550/1993(1996), para
7,9
64
Silver v UK App nos 5947/72, 6205/73, 7052/75, 7061/75, 7107/75, 7113/75, 7136/75 (ECtHR, 25 March
1983) („Silver‟) paras 85–90; Malone v UK App no 8691/79 (ECtHR, 2 August 1984) („Malone‟) paras 67–68;
Weber and Saravia v Germany App no 54934/00 (ECtHR, 29 June 2006) („Weber‟) para 23; Editorial Board of
Pravoye Delo and Shtekel v Ukraine App no 33014/05 (ECtHR, 5 August 2011) („Editorial Board‟) para 51;
Ahmet Yıldırım v Turkey App no 3111/10 (ECtHR, 18 December 2012) („Ahmet‟) paras 57–59;
ICCPR,„Concluding Observations on the Fourth Periodic Report of the United States of America‟ (23 April
2014) CCPR/C/USA/CO/4 para 22; UNHRC, „The Right to Privacy in the Digital Age, Report of the Office of
the United Nations High Commissioner for Human Rights‟ (30 June 2014) UN Doc A/HRC/27/37 („UNHRC
June 2014 Report‟) para 28
13
2A.2.1.1. IA is sufficiently precise
As stated by the ECtHR in The Sunday Times v UK, a restriction is prescribed by law if it is
accessible, foreseeable and precise to the degree that a reasonable person can regulate his
conduct accordingly.65A law is accessible if it gives the citizens an adequate indication of the
legal rules applicable to a given case.66Moreover, it is foreseeable if it is precise enough to
enable citizens to regulate their conduct67 and predict the consequences of non-compliance.
The IA is sufficiently precise as Peaps could reasonably foresee the limits to online speech.
Section 1(b) prohibits speech which is false information and which is knowingly or recklessly
communicated with the intent to incite civil unrest, hatred, or damage the national unity.68As
Post on Scoops, Peaps could reasonably foresee liability as the circumstances in Turtonia
demands.
2A.2.1.2. It contained adequate safeguard
The IA has adequate safeguards against unfettered discretion. The „law must indicate with
sufficient clarity the scope of any… discretion and the manner of its exercise.69 Furthermore,
the right to an appeal is an adequate safeguard.70 As highlighted by the UNHRC, the judiciary
is an appropriate check against the executive.71 Peaps‟s appeal to the Supreme Court of
Turtonia72 demonstrates that the IA has adequate safeguards.
65
Chauvy and others v France App no 64915/01 (ECtHR, 29. September 2004)
66
Ibid.
67
Rekvényi v Hungary App no 25390/94 (ECtHR, 20 May 1999)
68
Compromis 11.2
69
Liu v Russia (no 2) App no 29157/09 (ECtHR, 26 July 2011) para 88. Huvig v France App no 11105/84
(ECtHR, 24 April 1990) para 34; Kruslin v France App no 11801/85 (ECtHR, 24 April 1990) para 35
70
Klass v Germany App no 5029/71 (ECtHR, 6 September 1978); Malcolm Ross v Canada UN
DocCCPR/C/70/D/736/1997 (HRC, 18 October 2000); Uzun v Germany App no 35623/05 (ECtHR, 2
September 2010); Gurtekin v Cyprus App nos 60441/13, 68206/13, 68667/13 (ECtHR, 11 March 2014) para 28
71
See Malcom Ross (n17)
72
Compromis 14.2
14
2A.2.1.3. The prosecution under it had a legal basis
There was a legal basis to prosecute Peaps as the prosecution for posts in Scoops was not
retroactive. There is no legal basis for a prosecution where it is retroactive. 73 The Act was
enacted in 2006 and Peaps has been prosecuted after 2006. Therefore, the prosecution has a
legal basis.
2A.2.2. The Act had legitimate aim
The limitation under the Information Act properly fall within the accepted purview under
international human rights law which provides that the restriction on the freedom must be for
purposes of national security74 and as is necessary to maintain public safety75and order. The
respondents submit that these are the aims of the Information Act.
2A.2.3. The prosecution necessary in a democratic society
The Respondents concur with the statement of Lord Neuberger of Abbotsbury, Master of the
Rolls when he observed that though the freedom of expression be the „primary right‟ and the
„life blood of democracy‟; the freedom should be restricted under certain circumstances for
democracy to thrive.76 An interference is necessary in a democratic society if it: (1)
corresponds to a pressing social need; and (2) is proportionate to the legitimate aims
pursued.77
73
Kimmel v Argentina Serie C No. 177 (IACtHR, 2 May 2008) paras 66–68. See also Ricardo Canese v
Paraguay Serie C No. 111 (IACtHR, 31 August 2004) para 175
74
1976) 999 UNTS 171 (ICCPR) Art 19(3)
75
Leroy v France App no 36109/03 (ECtHR, 2 February 2008); ECHR Press Release, „Chamber Judgment
Leroy v France‟ (October 2008) ECHR/Press 681
76
Kimmel v Argentina (n 23) paras 66–68. See also Ricardo Canese v Paraguay (n 23) para 175
77
„General Comment 34‟ (12 September 2011) UN Doc CCPR/C/GC/34 („General Comment 34‟) para 21;
paras 22, 33–34; „Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of
Opinion and Expression‟ (17 April 2013) UN Doc A/HRC/23/40 („UNHRC April 2013 Report‟) para 29.; Delfi
AS v Estonia App no 40287/98 (ECtHR, 16 June 2015)para131, Perincek v Switzerland App no 27510/08
(ECtHR, 15 October 2015) para 117
15
2A.2.3.1. There was a pressing social need to prosecute Peaps
A State may interfere with an individual‟s rights to freedom of expression and privacy if he
engages in hate speech.78 According to the UN Rabat Plan, the following factors must be
considered: the intention of the speaker; the content of the speech; the context; the status of
the speaker; the medium of the speech; and the likelihood of hatred, discrimination, or
violence occurring.79 There was a pressing social need to prosecute Peaps as his posts in
Scoops was hate speech.
Firstly, the content of posts was particularly hostile. This is evinced by the strong
words used against Kola,in particular, using the words as secret lover80. Secondly, the post
must be read in light of Turtonia‟s socio-political context. „Cultural paradigms must be…
taken into account when considering whether certain comments… constitute hate speech‟.81
The immigrants and True religion issues are therefore a consideration. While the artistic
expression should warrant greater tolerance, it is not a carte blanche against prosecutions.82
78
Malcom Ross (n 17)
79
UN Committee on the Elimination of Racial Discrimination, „General Recommendation No 35 Combating
Racist Hate Speech‟ (26 September 2013) UN Doc CERD/C/GC/35 („General Recommendation No 35‟) para
15; UNHRC, „Report of the Special Rapporteur on Freedom of Religion or Belief‟ (26 December 2013) UN Do
c A/HRC/25/58 para 58
80
Compromis 8.3
81
UNHRC, „Report of the Special Rapporteur on Minority Issues‟ (5 January 2015) UN Doc A/HRC/28/64
(„UNHRC January 2015 Report‟) paras 35–42,. See also Prosecutor v Akayesu (Judgment) ICTR-96-4-T, T ChI
(2September 1998) para 557; Sürek v Turkey App no 23927/94 (ECtHR, 8 July 1999) para 62; Karatas v Turkey
App no 23168/94 (ECtHR, 8 July 1999) para 48; Catch the Fire Ministries Inc v Islamic Council of Victoria
[2006] VSCA 284 para 159; Prosecutor v Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze
(Appeal Judgment) ICTR-99- 52-A (28 November 2007) para 698; UNHRC January 2015 Report (n 5) para 52;
UNHRC Rabat Plan (n 4) para 22;Susan Benesch, „Dangerous Speech: A Proposal to Prevent Group Violence‟
(12 January 2012)
<http://www.worldpolicy.org/sites/default/files/Dangerous%20Speech%20Guidelines%20Benesch%20January
%20201 2.pdf> accessed 17 January 2016, 5; University of Oxford, „Comparative Hate Speech Law:
Memorandum‟ (2012) <http://www3.law.ox.ac.uk/denning-archive/news/events_files/2012_-
_LRC_Hate_Speech_Memorandum.pdf> accessed 17 January 2016, para 49; Article 19, „Prohibiting Incitement
to Discrimination, Hostility or Violence‟ (21 December 2012)
<http://www.article19.org/resources.php/resource/3572/en/prohibiting-incitement-to-discrimination,- hostility-
or-violence> accessed 17 January 2016, 29–30
82
UNHRC, „Report of the Special Rapporteur in the Field of Cultural Rights‟ (14 March 2013) UN Doc
A/HRC/23/34 para 33; Prosecutor v Simon Bikindi (Judgment) ICTR-01-72-T (2 December 2008) paras 254,
264
16
Thirdly, the post was published on Scoops, a social media platform 83 with extensive reach.
Scoops is the most popular social media platform in Turtonia. The post went viral on Scoops,
reaching more than 10,000 on Scoops within the first hour of appearing, and spreading to
other websites and social media84 and it had 21,000 shares and 145,000 views when it was
removed85. Such reach makes it a potent source for disseminating hate speech. Furthermore,
the ease of anonymity emboldens individuals to spread hate speech. Thus, the abuse of social
media has led to loss of lives in Myanmar86, Sri Lanka87, and Israel88 among others.
2A.2.3.2. The damages under IA is proportionate to the legitimate aims pursued
The Respondent claims that the damages are least restrictive and proportionate to the
legitimate aim of protecting the right to privacy and reputation. Furthermore, in Markt Intern
Verlag GmbH v Germany, the ECtHR held that any premature publication is bound to have
harmful effects on the plaintiff.89 As stated by the ECtHR in Delfi v Estonia, measures taken
weeks or even days too late to protect a person's honor are insufficient, because offensive or
unlawful content will already have reached the public and done its damage.90 Therefore, The
Respondents submits that the damage is proportionate.
83
Compromis 5.1
84
ibid at 8.4
85
ibid at 9.2
86
Hereward Holland, „Facebook in Myanmar: Amplifying Hate Speech?‟ Aljazeera (Turkey, 14 June 2014)
<http://www.aljazeera.com/indepth/features/2014/06/facebook-myanmar-rohingya-amplifying-hate-speech-
2014612112834290144.html> accessed 17 January 2016
87
Shilpa Samaratunge and Sanjana Hattotuwa, „Liking Violence: A Study of Hate Speech on Facebook in Sri
Lanka‟(2014) <http://www.cpalanka.org/liking-violence-a-study-of-hate-speech-on-facebook-in-sri-lanka/>
accessed 17 January 2016, 10
88
Jodi Rudoren, „Leaderless Palestinian Youth, Inspired by Social Media, Drive Rise in Violence in Israel‟ New
York Times(13 October 2015) <http://www.nytimes.com/2015/10/14/world/middleeast/leaderless-palestinian-
youthinspired-by-social-media-drive-a-rise-in-violence.html> accessed 17 January 2016
89
Intern Verlag GmbH and Klaus Beerman v Germany App no 10572/83 (ECHR, 20 November 1989); Delfi v
Estonia App no 64569/09 (ECtHR, 10 October 2013)
90
Markt Delfi v Estonia App no 64569/09 (ECtHR 10 October 2013)
17
2A.3. Peaps’ post on Scoops was hate speech
Though freedom of expression is protected under international law,91 it is never absolute83
and „must yield to the interests of society in some circumstances‟.92 Specifically, Article
20(2) of the ICCPR provides that „Any advocacy of national, racial or religious hatred that
constitutes incitement to discrimination, hostility or violence shall be prohibited by law‟.93 It
further requires state signatories to enact laws that guard against incitement, including
religiously offensive speech likely to instigate violence.94 Incitement is not protected under
the ICCPR.95 Defining and identifying incitement involves evaluating the speech itself and its
context;96 therefore, incitement is determined on a case-by case basis.97 Incitement does not
have to advocate for lawless action or a breach of the peace. 98Rather, speech is incitement if
it is „gratuitously offensive‟ or „insulting99 .
In Gooding v. Wilson, specifically, the Court defined the exception as limited to
words that "have a direct tendency to cause acts of violence by the person to whom,
individually, the remark is addressed.100
State is not permitted to forbid or proscribe advocacy for the use of force or of law
violation of law except where such advocacy is directed to inciting or producing imminent
91
UNHRC „General Comment 34‟ in „Article 19: Freedoms of Opinion and Expression‟ (2011) UN Doc
CCPR/C/GC/34
92
Miller v California (1973) 413 US 15, 23
93
1976) 999 UNTS 171 (ICCPR) Art 20(2)
94
JRT & WG Party v Canada Communication No 104/1981 UN Doc CCPR/C/18/D/104/1981 (1983), para 8
95
ibid
96
Murphy v Ireland (2004) 38 EHRR 212; Wisconsin v Mitchell 508 US 476, 484–85 (1993)
97
JRT & WG Party v Canada Communication No 104/1981 UN Doc CCPR/C/18/D/104/1981 (1983), para 8
98
100 Murphy v Ireland (2004) 38 EHRR 212
99
Giniewski v France (2007) 45 EHRR 23, paras 43, 52; Kutlular v Turkey App no 73715/01 (ECHR, 29 April
2008), para 47
100
Gooding v. Wilson 405 U.S. at 524 (1972)
18
lawless action and is likely to incite or produce such action.101 The formula not only requires
an intention to incite and a likelihood that the advocacy will incite unlawful action, which had
been the primary focus of criticism of the "reasonableness" test, but also that the likely
unlawful action be imminent (emphasis added).102
The Respondent submits that, Peaps has an intention to incite. Firstly, he is a member
103
of Turton Power which began publicly denouncing Kola even she has been subjected to
harassment and abuse online, and one person - a member of Turton Power - has been
104
convicted of attempting to assault her in a public place. There was a significant influx of
immigrants105 therefore the issue of immigrants and True Religion 106 was major issues.
Therefore, Peaps used the circumstances to incite violence.
Secondly, Peaps posted a photoshopped image on May 2.107 There was a protest on
108
May 4 and 5 regarding the resignation of Kola and there were offensive slogans related to
the image posted by Peaps. Even on May 5, two Aquarian was killed by angry mob of
Turtonia109 which clearly shows about the internal violence. Therefore it can be said that,
there was a intention to incite a violence and it was direct or imminent.
101
395 U.S. at 447, citing Dennis and Yates
102
Brandenburg v. Ohio 38. 395 U.S. 444 (1969)
103
Compromis 7.1
104
ibid at 4.1
105
ibid at 2.1
106
ibid at 3
107
ibid at 8.1
108
ibid at 9.4
109
ibid at 9.5
19
ISSUE 2B: TURTONIA’S PROSECUTION OF SCOOPS UNDER THE IA DOES NOT VIOLATE
Respondent submits that prosecuting Scoops under IA is in accordance with the rights
assured under article 19 of the ICCPR since is not absolute110 and may be curbed by
limitations imposed by the law.111
The exercise of the rights provided for in paragraph 2 of this article carries with it
special duties and responsibilities. It may therefore be subject to certain restrictions, but these
shall only be such as are provided by law and are necessary: (a) For respect of the rights or
reputations of others; (b) For the protection of national security or of public order, or of
public health or morals.112
Restrictions must: (i) be provided by law; (ii) pursue a legitimate aim; and (iii)
conform to the strict tests of necessity and proportionality.
2B.1. Restriction on and prosecution of scoops is provided by law
A restriction will be regarded as prescribed by law if it is imposed by the domestic law 113 and
it must be accessible and foreseeable.114 The law must be precise as citizen must be able to
110
Worm v Austria 83/1996/702/894 (ECtHR, 29 August, 1997); DevidasRamchandraTuljapurkar v State of
Maharashtra and Ors (2015, SCC) paras 5, 30, 80 Criminal Appeal No. 1179 of 2010; Sahara India Real Estate
Corpn Ltd v SEBI (2012) 10 SCC 603; Md. Riazuddin Khan and another v MahmudurRahman and others
(2010), 39 CLC (AD) at paras 13, 30; State v Chief editor, Manabjamin and others (2005) 57 DLR (HCD) 359;
Mostafizu Rahman v Bangladesh and others (1991) 20 CLC (HCD); Samresh Bose and Anr. vAmalMitra and
Anr (1985) 4 SCC 289; Roth v United States (1957) 354 US 476; State of Oregon v Earl A Henry 732 P 2d 9
(1987)
111
Human Rights Council resolution 20/8, The promotion, protection and enjoyment of human rights on the
Internet, A /HRC/20/L.13 (29 June 2012) <undocs.org/A/HRC/20/L.13>accessed 19 October 2016; UDHR
(adopted 10 December 1948 UNGA Res 217 A(III) art 29(2); ICCPR (adopted 16 December 1966, entered into
force 23 March 1976) 999 UNTS 171 art 19(3); ACHPR (adopted 27 June 1981, entered into force 21 October
1986) (1982) 21 ILM 58 art 9; ACHR (adopted 22 November 1969, entered into force 18 July 1978) art 11;
Rights) art 10(2); ICCPR(adopted 16 December 1966, entered into force 23 March 1976); 999 UNTS 171 arts
21 and 22; ACHPR (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58 arts 10-11;
American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) (ACHR),
arts 15-16; ECHR (adopted 4 November 1950, entered into force 3 September 1953) art 11; Chaplinsky v New
Hampshire 315 US 567 (1941)
112
Article 19, „Defending Freedom Of Expression And Information‟ (Article 19,2013)
<https://www.article19.org/data/files/Intermediaries_ENGLISH.pdf> accessed 21 December 2017
113
Hinczewski v Poland App no 34907/05 (ECtHR, 5 October, 2010)
20
foresee the consequences which a given action may entail, these consequences need not be
foreseeable with absolute certainty.115 In the present case, IA is sufficiently precise and
permissibly wide to keep pace with the changing technological advancements.116 A law is
foreseeable if it is precise enough to enable citizens to regulate their conduct. 117 The IA has
stated specifically upon what conditions a material will be regarded as illegal and when a
service provider can be compelled to remove a post. The IA is applicable to Scoops because
it is Turtonia based social media and it is very evident that a national legislation cannot be
unascertainable and inaccessible118 to a social media platform like Scoops.
The law does not confer unfettered discretion to the executing authority. It specifies
content to be considered offensive and also prescribes punishment for the offence. Therefore
IA complies with mandate of „Provided by law‟ under Article 19 as Law is characterized as
(i) formulated with sufficient precision to enable an individual to regulate his or her conduct
(ii) made accessible to the public119 (iii) not conferring unfettered discretion for the
restriction of freedom of expression on those charged with its execution.120
114
Silver and Others v United Kingdom [1983] Series A no 61; The Sunday Times v United Kingdom [1991] App
no 13166/87 (ECtHR, 26 November 1991); Rekvényi v Hungary [1999] App no 25390/94 (ECtHR, 20 May
1999); Gaweda v Poland [2002] App no 26229/95 (ECtHR, 14 March 2002)
115
Delfi AS v Estonia App no 64569/09 (ECtHR, 10 October 2013) para 121; Lindon, Otchakovsky-Laurens and
July v France App nos 21279/02 & 36448/02 (ECHR, 22 October 2007)
116
Delfi AS v Estonia App no 64569/09 (ECtHR, 10 October 2013) para 121; Lindon, Otchakovsky-Laurens and
July v. France [GC] nos 21279/02 and 36448/02 (ECHR, 22 October 2007)
117
The Sunday Times v UK [1991] App no 13166/87 (ECtHR, 26 November 1991); Rekvenyi v Hungery[1999]
ECHR 1999-III 34
118
Malone v UK (1984) 7 EHRR 14; Leander v Sweden (1987) 9 EHRR 433; Kruslin v France (1990) 12 EHRR
546
119
De Groot v. The Netherlands, Communication No. 578/1994 Views adopted on 14 July 1995
120
21
2B.2. Restriction on and prosecution of scoops is pursuing a legitimate aim
It has already been stated that restrictions on freedom of expression as per Article 19(3) of
ICCPR, can be imposed by law necessary for respect of the rights or reputations of others; for
the protection of national security or of public order, or of public health or morals.121
IA was adopted in the eve of reckless distribution of fake documents affecting the democratic
process and inciting civil unrest and disturbing public peace.122 The government passed this
law in order to preserve the integrity of the democratic process.123 Provision 1(b) of IA aims
to protect the reputation of the person and 1(b) aims to preserve national security and public
order.Turtonia has a duty to protect its citizens124 including protection from the harmful use
of technology to incite violence.125In consequence to His post, two Aquarian immigrants
were beaten to death by an angry mob and Kola had to resign amidst of protest. The column
posed a great threat126 of clear and imminent danger127against public order of Turtonia.
2B.3. Restriction on scoops conforms to the strict test of necessity and proportionality
A restriction upon freedom of expression is necessary in a democratic society if it
(1) corresponds to a pressing social need
(2) is proportionate to the legitimate aim pursued.128
121
Article 19, „Defending Freedom Of Expression And Information‟ (Article 19, 2013)
<https://www.article19.org/data/files/Intermediaries_ENGLISH.pdf> accessed on 21 December 2017
122
Compromis Para 11.1
123
ibid
124
Zimbabwe Human Rights NGO Forum v Zimbabwe (2006) AHRLR 128 (ACHPR 2006) para 143
125
Delfi AS v Estonia App no 64569/09 (ECtHR, 16 June 2015) para 110
126
Virginia v Black 155 L. Ed. 2d 535 US 551, 552, 553 (2003); See also Watts v United States 22 L. Ed. 2d.
664, 667 (1969)
127
Schenck v United States 63 L Ed 470. See also, Gompers v Buck's Stove & Range Co 221 US 418; Abrams v
United States 250 US 616 (1919); Terminiello v City of Chicago 93 L Ed 1131 (1949) 1134-1135; Brandenburg
v Ohio 23 L Ed 2d 430 (1969) 434-435 & 436; S Rangarajan v PJagjivan&Ors(1989) 2 SCC 574 [45]
128
Handyside v United Kingdom [1976] (ECtHR, 07 December 1976) [48]; UNHRC „General Comment 34‟ in
„Article 19: Freedoms of Opinion and Expression‟ (2011) UN Doc CCPR/C/GC/34 paras 22, 33–34; UNHRC
April 2013 Report para 29; Delfi v Estonia App no 64569/09, (ECtHR, 16 June 2015) para 131
22
There exists a pressing social need for the impugned restriction. It is clear from the
fact that violence is likely to occur any time since the alleged post already have caused
one.129 It is paramount duty of a state to protect its citizen130in executing this duty social
media poses new challenges as social media intermediaries are powerful, virulent and broad-
reaching platform for spreading hatred, terror and violence.131
The restriction is proportionate to the legitimate aim.132 The test of proportionality or
reasonableness133 is satisfied when the least onerous restriction is imposed.134 Respondent
submits that the restriction is reasonable and least onerous.
Recent activities of Turton power create hostility towards Aquaria a neighboring
country Turtonia. It becomes necessary for the government to preserve friendly relationship
with neighboring country and impose restriction on such activities to protect public order and
national security. And restrictions imposed by IA are proportionate to achieve this goal.
2B.3.1. SCOOPS does not fall within the immunity clause under IA
SCOOPS is an online based social media that works as a hosting135 intermediary. The E-
Commerce Directives (ECD) in the European Union has dealt with the liabilities of the
129
Compromis 9.4 and 9.5
130
Plan de Sánchez Massacre v Guatemala IACtHR (2004) Series C No 116, para 112; Zimbabwe Human
Rights NGO Forum v Zimbabwe (2006) AHRLR 128 (ACHPR 2006) para 143
131
UNHRC, „Report of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination,
Xenophobia and Related Intolerance‟ (6 May 2014) UN Doc A/HRC/26/49 paras 2, 16–19. See also UNHRC,
„Report of the Special Rapporteur on Minority Issues‟ (5 January 2015) UN Doc A/HRC/28/64 („UNHRC
January 2015 Report‟) paras 35–42,76; Comprehensive Study on Cybercrime, Draft February 2013, UNODC
<https://www.unodc.org/documents/organized-
crime/UNODC_CCPCJ_EG.4_2013/CYBERCRIME_STUDY_210213.pdf> accessed 12 October 2016
132
Handyside v United Kingdom (1986) Series A no 24; Clause I(A)(10)(d), Siracusa Principles on the
Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, U.N. Doc.
E/CN.4/1985/4.
133
Toonen v Australia [1994] PLPR 33 (HRC); District Registrar & Collector, Hyderabad v Canara Bank AIR
2005 SC 186 (India); Sarah Joseph and others, „The International Covenant on Civil and Political Rights:
Cases, Materials and Commentary‟ (2nd edn., OUP 2005) 483.
134
Shelton v Tucker 364 US 479 (1960); Nebraska Press Association v Stuart 427 US 539 (1976); Compulsory
Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85,
Inter-American Court of Human Rights Series A No 5 (13 November 2003)
23
intermediary.136 It provides that an intermediary is liable for the unlawful contents generated
by its users if (a) it has actual knowledge of such illegal contents or (b) upon having
knowledge or awareness of such illegal matters fails to remove or disable access to the
information expeditiously.137 The illegality of the contents can be defined under national law
(e.g. ODPA and IA).138 Removal of illegal content upon having notice or takedown order has
been adopted in various legislations of U.S.A.,139 South Korea140 and U.K.141 Facebook142
and Twitter143 have policies to take down unlawful post when they receive notice or judicial
takedown order which is similar to that of Scoops. Scoops had actual knowledge 144 to the
infringing activity after the report of the Kola‟s stuff yet did not remove the offensive content
expeditiously under OSP‟s liability imposed by IA was the finding of the court.145
135
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects
of information society services, in particular electronic commerce, in the Internal Market ('Directive on
electronic commerce') art 14
136
European Union Regulatory Framework for Commerce (WTO, 18 June 2013)
<http://www.wto.org/english/tratop_e/serv_e/wkshop_june13_e/sparas_e.pdf> accessed 19 October 2016
137
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects
of information society services, in particular electronic commerce, in the Internal Market ('Directive on
electronic commerce')art 14(2) & art 14(3); European Union Regulatory Framework for Commerce, (WTO, 18
June 2013) <http://www.wto.org/english/tratop_e/serv_e/wkshop_june13_e/sparas_e.pdf> accessed 19 October
2016; Opinion of the AG in joined cases C-236/08 to C-238/08 of 22 September 2009; Declaration on Freedom
of Communication on the Internet, principle 6
138
Declaration on Freedom of Communication on the Internet (Adopted by the Committee of Ministers on 28
May 2003), principle 6
139
Digital Millennium Copyright Act (DMCA) (USA) s 512(c)
140
Act on Promotion of Information and Communication Network Utilization and Information Protection
(amended in 2002) (Korea); Copyright Act 2009 (Ghana).
141
Defamation Act 2013 (UK), s 13(1)(a)
142
Community Standard < https://www.facebook.com/communitystandards#> accessed 05 October 2016)
143
The Twitter Rules <https://support.twitter.com/articles/18311> accessed 5 October 2016; Report copyright
infringement <https://support.twitter.com/forms/dmca> accessed 5 October 2016
144
L‟Oréal SA and Others v eBay [2011] C-324/09 para 119
145
Compromis 13.2
24
2B.3.2. Scoops has violated its policy
Scoops‟ Terms of Service that specify that they do not allow harmful and malicious content
such as spam, non-consensual sharing of intimate images, hate speech or child exploitative
imagery. The post is malicious since Scoops is not a news portal and can‟t publish a fake
news that is „harmful and malicious‟ and at the second place which contains „non-consensual
sharing of intimate image‟ because it was an intimate image and scoops did not filter it
whether it was consensual or not thus gave away a wide abusive power over its users. Finally,
even though it was reported to be „a nude image of me shared without my consent‟ it did not
remove the same thus violated its own terms and policies.
25
RELIEF SOUGHT
In the light of the arguments presented and the authorities cited, Niam Peaps and Scoops
Respectfully request this Court to adjudge and declare that:
A. Turtonia's prosecution of Peaps under the ODPA does not violate Article 19 of the
ICCPR.
B. Turtonia's prosecution of Scoops under the ODPA does not violate Article 19 of the
ICCPR.
C. Turtonia's prosecution of Peaps under the IA does not violate Article 19 of the
ICCPR.
D. Turtonia's prosecution of Scoops under the IA does not violate Article 19 of the
ICCPR.
On behalf of the Respondents,
Team 229R
26

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229R

NEAM PEAPS & SCOOPS

FEDERAL REPUBLIC OF TURTONIA

MEMORIAL FOR THE RESPONDENT

Word Count: 4965

LIST OF AUTHORITIES ...............................................................................................................V

STATEMENT OF RELEVANT FACTS .....................................................................................XVIII

STATEMENT OF JURISDICTION ............................................................................................XXIII

QUESTIONS PRESENTED ...................................................................................................... XXIV

SUMMARY OF ARGUMENTS .................................................................................................. XXV

ARGUMENTS ADVANCED ........................................................................................................... 1

ISSUE 1A : TURTONIA’S PROSECUTION OF PEAPS DOES NOT VIOLATE ARTICLE 19 OF

THE ICCPR ............................................................................................................................ 1

1A.1. The Act of Peaps violates ODPA ............................................................................. 1

ISSUE 1B : TURTONIA’S PROSECUTION OF SCOOPS UNDER THE ODPA DOES NOT

VIOLATE ARTICLE 19 OF THE ICCPR .................................................................................. 6

monitor and remove derogatory post from its site .............................................................. 6

1B.2. The prosecution was necessary in a democratic society ......................................... 10

ARTICLE 19 OF THE ICCPR ................................................................................................ 12

violence and thus incited civil unrest through false information...................................... 12

2A.3. Peaps‟ post on Scoops was hate speech .................................................................. 18

ARTICLE 19 OF THE ICCPR ................................................................................................ 20

2B.1. Restriction on and prosecution of scoops is provided by law ................................. 20

2B.2. Restriction on and prosecution of scoops is pursuing a legitimate aim .................. 22

RELIEF SOUGHT ...................................................................................................................... 26

ACHPR : African Court on Human and Peoples‟ Rights

ACHR : African Convention on Human Rights

AHRLR : African Human Rights Law Reports

African Charter : African Charter on Human and Peoples‟ Rights

CUP : Cambridge University Press

ECHR : European Convention of Human Rights

ECtHR : European Court of Human Rights

EHHR : European Human Rights Reports

European : Convention for the Protection of Human Rights and

Convention Fundamental Freedom

IACtHR : Inter-American Court of Human Rights

ICJ : International Court of Justice

ICCPR : International Covenant on Civil and Political Rights

UDHR : Universal Declaration of Human Rights

International Declarations, Charters, Covenants, and Conventions

African Charter on Human and Peoples‟ Rights

(adopted 27 July 1981, entered into force 21 October 1986)

(1982) 21 ILM 58 (African Charter)

American Convention on Human Rights

(adopted 22 November 1969, entered into force 18 July 1978)

1144 UNTS 123 (ACHR)

Convention for the Protection of Human Rights and Fundamental Freedoms

(European Convention on Human Rights, as amended)

Inter-American Declaration of Principles on Freedom of Expression,

adopted by the Inter-American Commission on Human Rights

(20 October 2000)

International Covenant on Civil and Political Rights

(adopted 16 December 1966, entered into force 23 March 1976)

999 UNTS 171 (ICCPR)

International Covenant on Economic, Social and Cultural Rights

(adopted 16 December 1966, entered into force 3 January 1976),

993 UNTS 3 (ICESCR)

(adopted 10 December 1948) UNGA Res 217 A(III) (UDHR)

Declaration on Freedom of Communication on the Internet

(adopted on 28 May 2003) Council of Ministers of Europe

Act on Promotion of Information and Communication Network Utilization and Information

Protection 2009 (Korea)

Constitution of the Republic of India 1949 (India)