III.

TURTONIAS PROSECUTION OF PEAPS UNDER THE IA VIOLATES HIS RIGHT

OF FREEDOM OF OPINION AND EXPRESSION.

i. The prosecution is not prescribed by law and the interference is not necessary in a
democratic society.

The IA was enacted without conforming to the three-part test provided in Article 19 of
the ICCPR.1 This is evidenced by it not being being prescribed by law since its fails to provide a
precise definition2 to what is false information, and is coupled with impermissibly vague lan-
guage which fails to clarify the prohibited conduct. The IA does not pursue a legitimate state aim
provided in Article 19 of the ICCPR3 and subsequently not a positive state obligation provided
by General Principles of International law.

i. The IA is not precise as it fails the twin subtest of clarity and foreseeability.

The rights enshrined in Article 19 of the ICCPR4 should only be restricted in the clearest
of circumstances5 where it leaves no room for ambiguity which enables it to have an endless
catchment area.6 This allows citizens to clearly determine what kind of conduct is prohibited so
they can regulate their actions accordingly7 while subsequently lessening the discretion given to

1 ICCPR art 19.

2 Muller and Others v Switzerland A 133 (1988); 13 EHRR 212 [29].

3 ICCPR art 19.

4 id.

5 Uganda: Obbo and Another v Attorney-General (2004) AHRLR 256 (UgSC 2004) [24].

6 Mwenda and Another v Attorney-General (2010) AHRLR 224 (UgCC 2010) [72].

7 The Sunday Times v United Kingdom App no 6538/74 (ECtHR, 26 April 1979) [49].
officials upon enforcement.8 It is upon the State that it should provide details of the law and of
actions that fall within the scope of the law.9

It is unclear whether knowingly or recklessly refers to the communication of false

information or to the intent to incite.. 10

ii. The prevention of the spreading of false information is not a positive state obligation
necessarily afforded protection by Article 19 of the ICCPR.

The Grand Chamber upheld that Article 19 does not only extend to truthful information
but also to false information.11 This much more so extends to holding, receiving and imparting
all forms of opinions, ideas and information.12 Therefore, false information as protected by Arti-
cle 19 of the ICCPR cannot be an obligation of a state to prevent since there is no legitimate state
aim to protect.

The court ruled that the prohibition of falsehood are on grounds of public order, safety and for
the protection of the rights and reputation of others, to be unsustainable and an unnecessary re-
striction of the individuals practice of journalists.13

For Freedom of Speech to be validly regulated under Article 20 of the ICCPR as propaganda,
must first comply to the three part test in Article 1914 which the IA fails to do.

8 UNGA Communications report of Special Procedures (30 November 2015) A/HRC/31/79, case no CHN 7/2015;
Limitations (Article 19) <www.article19.org/pages/en/limitations.html> accessed 25 November 2016.

9 General Comment No 34 (n 73) [27]

10 Compromis, 12.3.

11 Obbo and Another v Attorney-General (2004) AHRLR 256 (UgSC 2004) [14].

12 Obbo and Another v Attorney-General (2004) AHRLR 256 (UgSC 2004) [18]

13 Scanlen and Holderness v Zimbabwe (2009) AHRLR 289 (ACHPR 2009)

14 Ross v Canada See Communication No 736/1997.

 ii. Assuming arguendo that the IA was validly enacted, the conduct of Peaps does not
violate the IA.

During Peaps prosecution the post or communication was never proven to be false in tri-
al.15 It is the burden of the state (prosecution) to prove that the information was false.16 The bur-
den of proving the damaging effect of the phrases published and the knowledge of the falseness,
or the reckless disregard for whether the statements were true or not, should have been charged
to the complainant.17

Proof should be provided that the purported communication was for the purpose to incite.18 Cir-
cumstances surrounding the speech is not enough to constitute such as to incite violence or as
hate speech.19 And failure to prove that such speech is false information, takes Peaps out of the
boundaries of the IA.

The anticipated danger should not be remote, conjectural or far fetched. It should have proximate
and direct nexus with the expression. The expression should be intrinsically dangerous In oth-
er words, the expression should be inseparably locked up with the action contemplated like the
equivalent of a spark in a powder keg.20

The communication of Peaps alone cannot be the only one attributed to the socio-political disar-
ray that happened after its post. A day prior to the rallies and beatings, Turton Times ran an arti-

15 Compromis, 12.3.

16 ECHR, Barber, Messegu and Jabardo v. Spain, judgment of 6 December 1988, [77].

17Juan Miguel Morales Sola - https://globalfreedomofexpression.columbia.edu/cases/joaquin-miguel-morales-sola/

REVISE

18 Nigeria: Media Rights Agenda and Others v Nigeria (2000) AHRLR 200 (ACHPR 1998) [74].

19

20 S. Rangarajan v. P.J. Ram [1989](2) SCR 204, p. 226.

cle mentioning that the post coincided with growing dissatisfaction with Kola, and that it was time for her
to resign. The opinion piece cited the rising fear of Turtonians that Aquarian immigrants were stealing
jobs and that True Religion might begin to take root in Turtonia.21

IV. TURTONIAS PROSECUTION OF SCOOPS UNDER THE IA VIOLATES ARTICLE

19 OF THE ICCPR.
i. The prosecution was not prescribed by law and does not pursue a legitimate state aim.

i. The IA fails the test of precision as Scoops is unable to discern whether or not it
violated par. 1 subsection (1) or (2) of the IA which makes the IA imprecise.

ii. False information communicated by Scoops users is not foreseeable as it cannot discern
what constitutes false information.

The notion of foreseeability applies not only to a course of conduct, of which an applicant should
be reasonably able to foresee the consequences, but also to formalities, conditions, restrictions
or penalties, which may be attached to such conduct, if found to be in breach of the national
laws (see, mutatis mutandis, Kafkaris v. Cyprus [GC], no. 21906/04, 140, ECHR 2008-...).22

In the IA it was prescribed in par. 1 that the communicator must know that the information must
be false23, however there are no guidelines indicated in the IA for an ISP to discern whether the
information posted is false or not.24 Considering that there was no sufficient prior notice from
Kola.

21

22

23 Compromis 11.2.

24
The IA provides a soft pressure to intermediaries where they are encouraged by regulators or
third parties to! take voluntary action to police content on their networks.25 Examples would be
Article 16 of the ECD26, Trans Pacific Partnership proposal27, and the Good Samaritan Provision
of the CDA 23028.

In New York Times v Sullivan, the Court held that a public official may not recover damages for
defamation unless he or she can show that the publisher acted with actual malice.29

iii. There is no legitimate state aim pursued which is necessary to a democratic society.

(The protection of a Public/Political Figures public confidence and social acceptance is not a
legitimate state aim which is necessary to a democratic society.)

The list of interests in Article 19(3) of the ICCPR is exclusive in the sense that these are the only
interests whose protection might justify a restriction on freedom of expression.30

The Supreme Court of Canada has held that where the original purpose was to achieve an aim
other than one of those listed, the restriction cannot be upheld: Both purpose and effect are rele-
vant in determining constitutionally, either an unconstitutional purpose or an unconstitutional
effect can invalidate legislation. 31

25 The Manila Principles on Intermediary Liability Background Paper Version(0.99,(22(March(2015)

26See!European!Parliament!and!the!Council!of!the!European!Union,!
European(EICommerce(Directive(2000/31( (ECD),(article!16.

27Wikileaks,!Updated(Secret(TransIPacific(Partnership(Agreement((TPP)(I(IP(Chapter((second(publication),!
October,!16,!2014,!accessed!March!16,!2015.!!<https://www.wikileaks.org/tppUip2/>

28 See Section 230 of Title 47 of the United States Code (47 USC S 30).

29Trustco Group International Ltd, Max Hamata and Free Press Printers (Pty) Ltd v Matheus Kristof Shikongo
(2010) AHRLR 200 (NaSC 2010) [36]

30 See Mukong v. Cameroon, note 11, para. 9.7 (UN Human Rights Committee).

31R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295, p.331.

In Casado Coca v. Spain, the European Court held that a ban on advertising by lawyer had the
aim of ensuring that they were discreet, honest, and dignified. While this is no doubt a worthy
goal, it hardly qualifies as a fundamental human right.
right. - (Argue that Social Acceptance and Public confidence is not a fundamental human right
that was meant to be protected by Article 19)

When a conflict exist between a right protected in the Covenant and one which is not, recogni-
tion and consideration should be given to the fact that the Covenant seeks to protect the most
fundamental rights and freedoms.32

People who assume highly visible public roles must necessarily face a higher degree of criticism
than private citizens, otherwise public debate may be stifled altogether.33 Public officials are
therefore given the opportunity to defend itself.34

A higher degree of tolerance is expected when it is a political speech and an even higher thresh-
old is required when it is directed towards the government and government officials. In this re-
gard the European Court has held that politicians may be subject to stronger public criticisms
than private citizens.35

The Social Acceptance of Kola is not a legitimate state aim which is necessary in a democratic
society as she is a public figure, therefore all attacks against her that involves public interest
should be upheld.36

32 Jacobellis v. Ohio, 378 U.S. 184, 197 (1964).

33 Nigeria: Media Rights Agenda and Others v Nigeria (2000) AHRLR 200 (ACHPR 1998) [75].

34

35 Good v Botswana (2010) AHRLR 43 (ACHPR 2010) [199].

36 Gen. Comment 34 [30].

 ii. Assuming arguendo that the IA was validly enacted, Scoops is immune from liability
under par. 3 (a) and (d).

Scoops did not receive a direct financial benefit from the post of Peaps.37 This is evidenced by
Peaps not opting to have his post boosted.38

Scoops has a policy which it informs its subscribers that it can terminate posts that in its online
terminating service as provided in its term of service.39

There was no prior notification to Scoops to takedown the post because Kolas camp did not fin-
ish the form required for user takedown. 40 Notice and takedown only came in the form a civil
action against Scoops where the latter speedily took the post down.41 This is where notice and
takedown actually happened.

(Mere Messenger)
ISPs are mere intermediaries without autonomous control to the speech communicated or posted
by its users.42
Under the EUCommerce Directive (ECD) Article 14 Internet intermediaries are afforded protec-
tion from Intermediary liability for being a mere conduit for information, for caching informa-
tion, or hosting information.43 Provided these activities are of a mere technical, automatic and

37

38

39

40 Compromis 9.2

41 Compromis 9.2

42

43European!Parliament!and!the!Council!of!the!European!Union,
(European(EICommerce(Directive(2000/31( (ECD),!articles!12U15,!accessed!March!16,!2015.!<http://eu-
rUlex.europa.eu/legalU content/EN/TXT/PDF/?uri=CELEX:32000L0031&from=EN>!
passive nature and the intermediary has neither knowledge of nor control over the information
which is transmitted or stored they are afforded protection from liability.44

44 Id. [42].