Filing Amicus Curiae and other submissions at Domestic Courts: Strengthening Freedom of Expression at the National Level

In 2024, Media Defence filed written submissions in a number of cases before domestic courts across four regions. The role of Media Defence took different forms, including that of third-party intervener, amicus curiae, and expert providing an opinion in international law. The purpose of the submissions is to assist each court in its determination of the case before it in circumstances where press freedom is under threat.

The written submissions provide courts with perspectives that, it is hoped, will highlight the importance of applying international and comparative freedom of expression principles. They can play an important role in shaping legal standards by identifying and elaborating on legal developments, international best practices, and specific information not raised by the parties involved.

While Media Defence has long intervened in cases at regional and international courts, our national-level interventions have increased in recent years. From 2023 to 2024, we more than doubled the number of our domestic interventions, as courts and partner organisations increasingly invite us to intervene.

Filing domestic amicus briefs presents challenges, such as scepticism toward input from international organisations. However, these challenges highlight why domestic interventions are so important. By contributing to judicial reasoning at the national level, Media Defence seeks to help courts reframe the understanding of press freedom and improve legal safeguards, thereby directly enhancing the environments in which journalists operate daily. Strengthening national legal systems also benefits journalists by reducing the cost and duration of cases and minimising the need for appeals to regional or international courts.

This article provides a brief overview of some of the written submissions filed before domestic courts in 2024.

Albania
Elton Qyno, an investigative journalist from Albania, published an article on a high-profile investigation conducted by the Specialist Anti-Corruption Structure (SPAK) into an organised crime group. After refusing to reveal the identity of his sources, authorities raided Qyno’s home, office, and car on 13 December 2023, confiscating phones, computers, and other electronic devices. The SPAK continues to withhold his most critical devices. In January and April 2024, the Human Rights Committee ordered authorities by way of interim measures to refrain from further inspecting, processing or disseminating the material. Qyno’s lawyer brought the case to Albanian Constitutional Court to address the ongoing violations of his rights.

Media Defence filed an intervention in the Constitutional Court case to emphasise the importance of upholding regional and international standards on source confidentiality, a cornerstone of press freedom. By supporting. Qyno, Media Defence aims to highlight the chilling effect such actions have on investigative journalism and the trust of potential future sources in the press. Our intervention stresses that confiscating and accessing journalistic materials that can reveal the identity of sources not only endangers source confidentiality but also undermines the public’s right to information.

Angola
Angolan journalist and blogger, Silvano Delfino, was charged with the act of ‘rebellion’ for publishing a speech that criticised the President’s refusal to recognise election results, called for public protests, and condemned police brutality carried out with impunity. The charge of rebellion is rooted in provisions similar to sedition laws in other countries that are systematically used to silence dissent. If convicted, Delfino could face up to 12 years in prison.

Media Defence submitted an intervention to the Tribunal da Relação de Bengala in Angola to underscore that sedition laws, including those used to charge Delfino, fundamentally violate international human rights standards, including freedom of expression. The intervention argues that many countries have abolished sedition laws or ruled them unconstitutional, recognising their misuse as a tool for suppression.

Brazil
Da Motta, an award-winning cartoonist, published a cartoon on Instagram in response to a parliamentary inquiry into Brazil’s Covid-19 responses. The cartoon depicted horror movie characters calling Luciano Hang a monster. Hang, a wealthy and influential Bolsonaro supporter, testified during the inquiry regarding his endorsement of unauthorised Covid-19 treatments and his alleged approval of such treatment for his mother. There were also allegations that Covid-19 had been omitted from her death certificate. Hang filed a civil defamation lawsuit against Da Motta, seeking compensation and for the cartoon to be removed, claiming that it had damaged his reputation and image.

In support of Da Motta, Media Defence submitted a technical note, referencing international and comparative legal standards on freedom of expression related to cartoons, which often use hyperbole, exaggeration, and satire to comment on matters of public interest. The note emphasised that public figures must tolerate greater criticism due to their voluntary exposure to public scrutiny. Additionally, it highlighted the chilling effect of strategic lawsuits, often filed by powerful individuals not to win a case but to drain the respondent’s financial, mental, and time resources, ultimately stifling freedom of expression. Media Defence hopes that the Court will recognise the specific nature of cartoons and their important role in contributing to public debate on matters of public interest.

Cambodia
Mech Dara is a well-known journalist who works with Cambodia Daily, Phnom Penh Post and Voice of Democracy. He has won awards for his investigative reporting on Cambodia’s scam compounds, locations where human trafficking and torture are regularly reported. In September 2024 he was arrested and charged with incitement under articles 494 and 495 of the Cambodian Criminal Code. Incitement has become a convenient charge used against human rights defenders and activists in Cambodia in recent years and carries a penalty of up to two years in prison.

Media Defence provided written comments on international standards relating to incitement in the context of freedom of expression focusing on jurisprudence from the US, the ECtHR and elsewhere highlighting the appropriate standards to be applied in cases where journalists are charged with incitement.

Colombia: Access to Social Media Accounts of Public Officials

José Manuel Vega de la Cruz
In August 2023, journalist José Manuel Vega de la Cruz, filed a tutela action at the Colombian Constitutional Court after discovering that he had been blocked from accessing the @GobdelCesar account on X. The account, managed by the governor’s office of Cesar, where Vega’s media outlet El Periódico de Valledupar is based, is a key source of public information and government updates. The governor’s office admitted to the Foundation for Press Freedom (FLIP), who filed the tutela on the journalist’s behalf, that the block was due to the journalist’s editorial line. The governor’s office argued that it was operating according to X’s policies and defending against the journalist’s “attacks”, protecting their to right to privacy. Despite legal proceedings, the block remains in place, preventing Vega from accessing public information and restricting his journalistic work.

Media Defence intervened to highlight the disproportionate nature of the block, which not only restricted access to a single post but prevents all future interactions with the official account, impacting journalistic activity and the public’s right to know. The governance of social media by public entities should respect international and domestic standards on freedom of expression and access to public information.

In December 2024, the Constitutional Court overturned the blocking, ruling that it violated José Manuel Vega de la Cruz’s rights to freedom of expression and access to public information.

Ricardo Marín Rodríguez
In another Colombian Constitutional Court case, journalist Ricardo Marín Rodríguez filed a tutela action after being blocked by Senator Carmen Felisa Ramírez Boscán on social media. Marín Rodríguez argues that the block violates his right to freedom of expression, restricts his access to public interest information and his participation in democratic debate.

Media Defence intervened, providing an analysis of relevant international and comparative standards on freedom of expression, specifically highlighting the implications of blocking users on public officials’ social media accounts. The intervention argues that such actions should be recognised as a restriction on freedom of expression and must, therefore, meet the three-part test of legality, legitimacy, and proportionality. It also encourages the Court to establish that public officials managing social media accounts must uphold principles of transparency, inclusivity, and accountability, given their role in facilitating access to information and fostering public discourse in democratic societies.

Camilo Sánchez and Camilo Pardo
The Colombian Constitutional Court reviewed a tutela action filed against two journalists, Camilo Sánchez and Camilo Pardo, from the satirical independent news outlet “FuckNews.” The show, which uses political satire to address social issues, was accused of promoting harmful attitudes towards minors by allegedly justifying sexual abuse through vulgar and mocking commentary. The tutela claimed that the journalists’ satirical content violated children’s fundamental rights and disrupted their educational integrity. However, the Court ultimately declared the action inadmissible, citing a lack of compliance with procedural requirements, including standing.

As part of its deliberation, the Court invited Media Defence to submit an amicus brief addressing whether freedom of expression holds a distinct scope when it comes to humorous content. In the submission, Media Defence emphasised the importance of satire as a form of artistic expression that provokes and challenges societal norms, contributing to public debate on matters of general interest. The intervention highlighted that while satire must not incite hatred, it plays a vital role in fostering democratic discourse. It also cautioned against vague definitions of hate speech, which could lead to undue restrictions on lawful expression. The Court incorporated these arguments into its considerations before ruling on the case.

Mexico
In 2023, a constitutional challenge was filed against reforms to Mexico’s Federal Copyright Law, which introduced a ‘notice and takedown’ mechanism. This mechanism allows individuals to remove or block online content without judicial oversight. Originally designed to protect commercial interests, it has since been misused to censor dissent. For instance, early in 2024, Mexican presidential candidate, Álvarez Máynez, exploited the mechanism to suppress journalists’ reports on a video that showed him making derogatory comments about his political opponents. The use of this mechanism bypasses procedural safeguards for digital platform users, preventing the free dissemination of ideas and censoring information in the public interest.

In support of the constitutional challenge, Media Defence submitted an amicus brief in early 2024 to highlight the incompatibility of the reforms with human rights obligations under Mexico’s Constitution and international law. Our intervention underscores the need to address the misuse of digital mechanisms and safeguard access to information.

Romania
In Romania, we submitted written comments to the High Court of Appeal of Bucharest to support the case of Emilia Șercan, an investigative journalist whose stolen intimate photos were published online as an apparent act of retribution for her journalistic work. When Șercan was threatened with the publication of those photos in an anonymous message on social media, she reported the threat to the police. Not only did the police fail to adequately investigate her complaint, but it also apparently leaked a screenshot provided by the journalist that contained one of those sensitive images. Șercan successfully sought the judicial review of the authorities’ decision to terminate the investigation of these multiple violations of her privacy.

Our submission outlined the Romanian authorities’ obligation under Article 8 (respect to private and family life) of the ECHR to conduct a prompt and effective into the violation of Șercan’s right to respect for her private life. It demonstrated that a similar obligation also arose under Article 10 (freedom of expression), considering that there was strong evidence that the leaking and publication of the images were linked to Sercan’s journalistic work. The submission also highlighted the fact that women journalists were frequently subjected to sexualised online harassment.

Serbia
In Serbia, we submitted a legal opinion in a criminal case against two journalists working for a leading investigative reporting outlet. The case is initiated by a high-ranking judge and her husband. They argue that the outlet had breached Serbia’s data protection laws when it included information about the couple’s assets (gathered from open sources) in its public database of Serbian judges which is designed to increase the transparency of the national judiciary.

This case is an example of how data protection regulations are increasingly used by powerful figures to shut down legitimate media scrutiny of their activities. Although the legal standards are still evolving in this area, the current case-law from the European Court of Human Rights provides a robust framework for resolving tensions between freedom of the media (and the public’s right to be informed) and the right to the protection of personal data. In its submission to Belgrade’s First Basic Court, Media Defence argued that there was little room for restricting freedom of expression in the name of data protection when the reporting was a matter of public interest and concerns a person who has an important public role. We were also mindful of the fact that the legal action against the journalists in this case bore strong indications of a so-called ‘strategic lawsuit against public participation’ (SLAPP), that is, of a baseless or vexatious claim whose real purpose is to intimidate and drain the journalists of financial and psychological resources. In our submission, we outlined the recent SLAPP-related standards adopted by the Council of Europe and the EU and encouraged the Serbian court to examine whether the complaint was indicative of a SLAPP and, if it was, take procedural steps available under Serbian law to counteract and minimise the complaint’s impact on the defendants.

Thailand
In 2020 and 2021, during political upheaval in Thailand, Pegasus spyware was reportedly used by the State to target at least 35 activists, academics, and politicians. One of the individuals targeted was Jatupat Boonpattararaksa, a Thai activist whose phone was infected with Pegasus three times between June and July 2021. Pegasus, developed by the Israeli company NSO Group, provides authorities with near-total access to infected devices, including to emails, contacts, cameras and GPS data, raising severe concerns about privacy and the safety of those targeted.

Boonpattararaksa filed a civil lawsuit against NSO Group at Bangkok’s Civil Court for the alleged violation of his constitutional rights, seeking financial compensation, an end to the surveillance, access to the extracted data, and the deletion of any records from the company’s database. Ultimately, the court dismissed the case, stating that Boonpattararaksa failed to provide sufficient evidence to prove his phone had been infected with Pegasus.

Media Defence intervened to highlight the international human rights implications of spyware like Pegasus. The intervention emphasised global legal standards for safeguards against unwarranted surveillance and called for greater accountability in the use of such technologies. It aimed to support Boonpattararaksa’s fight for justice and advocate for stronger legal protections against spyware misuse.

The Importance of strengthening national legal frameworks
Ultimately, Media Defence’s domestic interventions aim to foster environments where freedom of expression is protected and upheld. By intervening at national courts, we can work to ensure faster implementation of judgments, support press freedom more effectively, and help create sustainable improvements to legal standards within countries.