T 24R THE 2012 MONROE E....

TEAM 24R

THE 2012 MONROE E. PRICE

INTERNATIONAL MEDIA LAW MOOT COURT COMPETITION

CASE CONCERNING INTERNET PRIVACY RIGHTS OF

OPENBEMIDIA USERS AND THE PRIVACY OF THE BEMIDIAN FIRST FAMILY

OpenBemidia

Applicant

v

The Republic of Bemidia

Respondent

MEMORIAL OF RESPONDENT

WORD COUNT: 4,941

i

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................. i

LIST OF ABBREVIATIONS ........................................................................................................ iii

LIST OF AUTHORITIES .............................................................................................................. iv

STATEMENT OF RELEVANT FACTS ....................................................................................... v

STATEMENT OF JURISDICTION.............................................................................................. xi

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

SUMMARY OF ARGUMENT ................................................................................................... xiii

ARGUMENT .................................................................................................................................. 1

I. The Requirement to collect and verify name and contact information before allowing a “user” to register for an account and to post to a forum is a reasonable measure taken to protect national security and it does not violate the right to freedom of speech. .................. 1

A. National security concerns outweigh the freedom of expression. ........................................ 1

B. Any restriction on the freedom of speech must be prescribed by law, pursue a legitimate purpose, and be necessary for a democratic society. ............................................................ 2

II. The Republic of Bemidia, in accordance with national security interests, asks the court to uphold the law requiring OpenBemidia to disclose to the government identity information, “following” information, and historical location information about its users.............................................................................................................................................5

A. National security and public safety concerns can trump an individual’s fundamental right to privacy according to the ECHR and the ACHPR. ............................................... 6

B. The requirement that OpenBemidia to disclose identity information is valid as it serves an important government interest ............................................................................ 7

C. Bemidia meets the test to impose restrictions on an individual’s freedoms as laid out by the Johannesburg Principles on National Security, Freedom of Expression and Access to Information. ............................................................................................................... 9

D. Bemidia meets the standard the court has laid out to restrict individual freedoms as laid out in the two-part Hutchenson test. ..................................................................................... 10

III. The Republic of Bemidia, in accordance with national security, asks the Court to uphold the requirement that OpenBemidia report to the government location information about the users of the MLM forum in real time. ……………………………12

A. National security concerns can trump an individual’s right to privacy according to Article 8 of the ECHR. ........................................................................................................ 13

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B. Incitement to illegal activates is sufficient for the government to impose restrictions on the freedoms of expression and privacy. .............................................................................. 14

IV. The First Family Protection Act does not violate the right to freedom of expression because the information posted was a breach of the right to privacy and, furthermore, the information created a security problem. .............................................................................. 15

A. When the right to freedom of expression and the right to privacy conflict, the decisive factor is whether or not the expression contributes to debates of public interest……………………………………………………………………………………………15

PRAYER FOR RELIEF ........................................................................................................................ 19

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LIST OF ABBREVIATIONS

ACHPR African Charter on Human and People’s Rights

Bemidia Republic of Bemidia

ECHR European Convention on Human Rights

ECtHR European Court of Human Rights

FFPA First Family Privacy Act

ICCPR International Covenant on Civil and Political Rights

IRA Internet Responsibility Act

MLM Mondahi Liberation Movement

PM Prime Minister

UK United Kingdom

UNDR Universal Declaration of Human Rights

iv

LIST OF AUTHORITIES

Treatises and Declarations

African Charter on Human and Peoples’ Rights (adopted 27 July 1981, entered into force 21 October 1986) 1520 UNTS 217 (ACHPR)………………………………………...…...………5, 6 European Convention on Human Rights (adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 1932 (ECHR)……………………………...….1, 5, 6, 12, 13, 15, 18 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR)…………………………………..………2, 15, 18 Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UNDR)……………………………………………………………………………………1, 15, 18

European Court of Human Rights

Association for European Integration and Human Rights and Ekimdzhiev v Bulgaria App no 62549.00 (ECtHR, 28 June 2007)…………………………………………………….………….11 Countryside Alliance v UK (2010) 50 EHRR SE6………………………………………………..8 Ergin v Turkey (2008) 47 EHRR 36………………………………………………………3, 4, 6, 8 Gül v Turkey (2011) 52 EHRR 38……………………………………………………..………….4 Lingens v Austria (1985) 7 EHRR CD 446……………………………………………………….3 MGN Ltd v UK (2011) 53 EHRR 5………………………………………………………………..8 Pinto Coelho v Portugal (2011) App no 28439/08 (EctHR, 28 June 2011)……………..…..…..7 Sadak v Turkey (2003) 36 EHRR 23……………………………………………………………6, 7 Sürek v Turkey (1999) ECHR……………………………………………………………….…….7 Tonsbergs Blad As and Haukom v. Norway (App. No 510/04) 1 March 2007……………..….5

Von Hannover v Germany (2005) 40 EHRR 1………………………………………..…15, 16, 17

United States Case Law

Brandenburg v Ohio, 395 US 444 (1969)………………………………………………………..14

v

California v Ciarolo, 476 US 207 (1986)…………………………………………………….……8 Galella v Onassis, 487 F 2d 986 (1973)………………………………………………….….16, 17 Herlog v Hustler Magazine Inc., 814 F 2d 1017 (1987)………………………………………....14 NAACP v Alabama, 357 US 449 (1958)……………………………………………………….7, 8 US v Fullmer, 584 F 3d 132 (2009)…………………………………………...…………………14 Whitney v California, 274 US 357 (1927)………………………………...…………………13, 14 African Court on Human and Peoples’ Rights Nigeria Media Rights Agenda v Nigeria (2000) AHRLR 262 (ACHPR 2000)…………………..5 Constitutions CONST of INDIA, art 19……………………………………………………………………...……..7 CONST of PEOPLE’S REPUBLIC OF CHINA, art 40……………………………………………...…..7 US CONST amend I………………………………….……………………………………………16 Miscellaneous Sources “The Johannesburg Principles on National Security, Freedom of Expression and Access to Information” (1996) Article 19 <http://www.article19.org/data/files/pdfs/standards/ joburgprinciples.pdf> accessed 1 Nov 2011……………………………………..……………..6, 9 Hutchenson v. News Group Newspapers Ltd & Ors (A2/2010/2863) HCJCA 7 September 2011……………………………………………………………...………………………… 6, 9, 10 Munim Abdul and Others v. Director of Public Prosecutions (2011) EWHC 247……………….5

Ferdinand v. MGN Ltd, (2011) EWHC 2454………………………………………….…….12, 13

vi

STATEMENT OF RELEVANT FACTS

A movement named the Mondahi Liberation Movement (MLM) has recently emerged

within the Republic of Bemidia (Bemidia) and, in the last few months, this terrorist group has

turned deadly.1 The MLM has carried out several bombings targeting government offices and

public markets in which dozens have lost their lives, including a prominent Nationalist member

of Parliament.2

Bemidia’s population is comprised of two major ethnic groups.3 The Diryen comprise

70% of the population and are primarily located in the northern region of the country.4 The

Mondahi comprise 25% of the population and are primarily located in the south.5 In the last few

years, Bemidia has experienced rapid economic growth thanks in large part to oil and mineral

resources.6 Because Bemidia has a parliamentary form of government predominantly divided

along ethnic lines, the Mondahi –Federalists – lack significant political influence.7 Yet, they

have focused their energy into mercantile pursuits and a wealthy merchant class of Mondahi has

emerged.8

1Compromis, para 6.

2 ibid.

3 Compromis, para 2.

4 ibid.

5 ibid.




vii

The Diryen of the north have always had political power, but they were economically

stagnant.9 Due to the disparity of economic power between north and south, two years ago, the

government passed a tax reform which would more evenly distribute Bemidia’s wealth.10 The

Mondahi, felt slighted by the reform and when their protests went unheard they openly expressed

the possibility of secession.11 The MLM then emerged and did more than protest. The MLM has

claimed the lives of dozens of people and continues to threaten the lives of Bemidians and the

stability of the government.12 Responding to these terrorist actions, Bemidia has mobilized the

military to increase public security.13 Yet, due to a military small in numbers and which has little

experience with guerilla tactics, the bombings have continued and more have lost their lives.14

The MLM’s actions have endangered the entire population, directly and indirectly. Bemidian

citizens are in danger of further terrorist acts by the MLM and, indirectly, they are in danger as a

result of increased ethnic tensions.15 Ethnic Mondahi living in the north, for example, are in

danger of being kidnapped, tortured, or even killed, as has happened in recent weeks.16

During this time of terrorist acts and ethnic division, a group of Mondahis started a

website called OpenBemidia which allows any registered user to start a “Tracker” forum - in



11 ibid.



14 ibid.

15 ibid.

16 ibid.

viii

which there would be posts focusing on a specific subject.17 Registered users are able to post text

and pictures via SMS, email, or the web.18 OpenBemidia’s ‘geolocation’ uses mobile towers and

other technology to accurately pinpoint users’ location at the time the post was made.19 One of

these registered forums is called ‘Military Tracker,’ started by a user named FreeBemidia.20

Bemidia is primarily concerned with its national security, as the Military Tracker forum has

accused the military of improprieties and has used the forum to misdirect the military.21 The

Military Tracker forum has been following the military and has provided accurate information on

where the military is at any given time.22 On two separate occasions, the information posted on

OpenBemidia has allowed terrorists to detonate bombs in places just moments after the military

had departed.23

Bemidia already had a longstanding law prohibiting the dissemination of military secrets.

However, as Bemidia’s national security is at risk, it has further enacted the Internet

Responsibility Act (IRA) which regulates entities operating on the web.24 The IRA is tailored

specifically to address the dissemination of sensitive information and to hold those found in

violation accountable.25 The IRA requires entities operating a website to collect and verify


18 ibid.




22 ibid.

23 ibid.

24 Compromis, paras 13, 14.


ix

identifying information of new subscribers prior their using the website.26 The law also permits

the government to request contact information of account holders, have the requested

information kept secret for 180 days, and to impose criminal sanctions for violations.27

OpenBemidia is structured so that some of the forums or posts can appear private; only

the users who ‘follow’ the forum are able to read the posts.28 Another forum, the MLM forum,

appears to be empty, but Bemidia suspects that the posts are private and only the MLM forum’s

followers can read them. Bemidia also suspects that the MLM is using OpenBemidia forums to

pursue its terrorist activities. It has requested the identity of FreeBemidia and the identity

specific individuals who are on a watch list.29 Bemidia has also requested the complete list of the

MLM forum users.30

Another concern for the government has been the tracker forums following Prime

Minister Vislio Luscon (PM), and his wife and daughters, Carla, Talia, and Daria, respectively.31

These forums pinpoint their location and almost everything they do in public.32 For example, the

Talia Tracker forum has informed the world when Talia was leaving for school, when she left


27 ibid.





32 ibid.

x

school early, when she visited the doctor, and when she went out for dinner with the family.33

Each of these posts included an accurate geographical location and a photograph.34

Knowing where the PM’s family is at any giving time places their safety at risk. Bemidia

has, thus, enacted the First Family Privacy Act (FFPA), which prohibits the publication of

private information of the PM’s family without prior consent.35 Relevant information which is of

public interest and that which relates to the Prime Minister himself is, of course, not prohibited

by the law.36 Private information of the kind prohibited by the FFPA includes photographs and

the specific locations of the individual.37 The FFPA does not prohibit the use of information

which only provides a general location, or photographs or location information more than 90

days old.38 In accordance with this law, the government has requested OpenBemidia to delete

every post made about the Prime Minister’s family as each post a photograph or geographic

location prohibited by the FFPA.39


34 ibid.


36 ibid.

37 ibid.

38 ibid.


xi

STATEMENT OF JURISDICTION

OpenBemidia (the Applicant) and the Republic of Bemidia (the Respondent), have

submitted their differences to the Universal Freedom of Expression Court special chamber of the

Universal Court of Human Rights. These differences concern the rights of freedom of expression

and privacy in accordance with Articles 19 and 12 of the Universal Declaration of Human

Rights. The Universal Freedom of Expression Court has jurisdiction in place of all other regional

courts and is the final adjudicator when all national remedies have been exhausted. Due to the

failure to resolve the matter with all available Bemidian means, the Universal Freedom of

Expression Court has jurisdiction in this matter.

OpenBemidia and the Republic of Bemidia hereby request this Honorable Court to issue

a judgment in accordance with all relevant international law including the Universal Declaration

of Human Rights, conventions, jurisprudence developed by relevant courts, and principles of

international law.

xii

QUESTIONS PRESENTED

The Respondents, the Republic of Bemidia, submit that the issues to be resolved do not violate

the freedoms of privacy and expression guaranteed under Articles 12 and 19 of the Universal

Declaration of Human Rights as such laws were enacted to prevent threats to national security

and should, therefore, be upheld. The questions presented are as follows:

I. Does Bemidia’s requirement to collect and verify name and contact information before

allowing a user to register for an account or to post to a forum violate the freedom of

expression under international law?

II. Does Bemidia’s requirement that OpenBemidia disclose identity information, ‘following’

information, and historical information about its users violate the freedoms of expression

and privacy under international law?

III. Does Bemidia’s requirement that OpenBemidia report to the government location

information about the users of the MLM forum in real time violate the right to privacy

under international law despite the mounting necessity for such requirements due to the

growing national security concerns?

IV. Does Bemidia’s requirement to delete the contents of the Carla Tracker, Talia Tracker,

and Daria Tracker issued under the First Family Privacy Act violate the freedom of

expression despite the need to protect the first family in times of civil turmoil?

xiii

SUMMARY OF ARGUMENT

I. Bemidia’s Internet Responsibility Act (IRA) is lawful under international law and it does

not represent a violation of the right to freedom of expression. The requirement to collect

and verify name and contact information before allowing a user to register for an account

and use OpenBemidia is a reasonable measure taken to protect national security and

Bemidian citizens. One’s right to freedom of expression is guaranteed by leading

international documents such as the Universal Declaration of Human Rights, the

European Convention of Human Rights and the International Covenant on Civil and

Political Rights. Yet, these same documents also state that this right may subjected to

reasonable measures in the interest of national security, territorial integrity or public

safety. Bemidia enacted the IRA as a specific and proportionate measure to address

terrorist activities which place its citizens in danger and threatens its national security.

The IRA is, therefore, not a violation of the right to freedom of expression.

II. Bemidia’s IRA is lawful under international law and it does not represent a violation of

the right to freedom of expression, speech or privacy. The requirement to disclose to the

government identity information, ‘following’ information, and historical location

information about its users does not violate these freedoms as the imposition of these

laws was duly enacted into law for national security purposes. The ECHR and the

ACHRPR both quantify that these laws are duly enacted and lawful to combat the

terrorism and national security threats which have emerged in Bemidia. Both the

Johannesburg Principles and the Hutchenson test which have been followed by the courts

lay out what is required for the government to restrict these fundamental rights, and

Bemidia meets all these standards in their efforts to combat the terrorism that has claimed

many lives throughout the country.

xiv

III. Bemidia’s IRA is lawful under international law and does not violate an individual’s right

to privacy as national security concerns are sufficient for the government to restrict these

rights. According to Article of the ECHR, the right to freedom of expression is

subordinate to the interests of national security and public safety. In this case, there are

continuing terrorist threats and many Bemidians have already lost their lives. Also, as the

court has held in Ferdinand, an individual’s right to privacy and expression may be

limited when it applies to security concerns and public safety. Both of these issues have

arisen with the MLM forum and their posts which are inhibiting the government’s goal of

combating the terrorist activities.

IV. The First Family Privacy Act (FFPA) does not violate the right to freedom of expression.

Just as one has a right to freedom of expression, Article 8 of the European Convention on

Human Rights (ECHR) dictates that ‘everyone has the right to respect for his private and

family life, his home and his correspondence.’ Information may, of course, be publicized

if it is in the public interest: such as the events of a Prime Minister acting in his official

capacity. The European Court of Human Rights (ECtHR) explained that ‘the decisive

factor in balancing the protection of private life against freedom of expression should lie

in the contribution that the published photos and articles make to a debate of general

interest.’ The FFPA is lawful because it is a controlled measure aimed at protecting the

First Family without unduly burdening freedom of expression. The FFPA is aimed at

preventing current photographs and information from being publicized which hold no

public interest value and which place the First Family in danger because they disclose an

accurate geographic location.

1

ARGUMENT

I. The Requirement to collect and verify name and contact information before allowing a

“user” to register for an account and to post to a forum is a reasonable measure taken to

protect national security and it does not violate the right to freedom of speech.

People possess a fundamental right to freedom of speech, yet certain circumstances can

outweigh this right. Furthermore, measures which are prescribed by law, proportionate, and

necessary, do not infringe speech.

A. National security concerns outweigh the freedom of expression.

Several international documents recognize a person’s right to freedom of expression. Article

19 of the Universal Declaration of Human Rights (UNDR) states that “everyone has the right to

freedom of opinion and expression; this right includes freedom to hold opinions without

interference and to seek, receive and impart information and ideas through any media.”40 Article

10(1) of the European Convention of Human Rights (ECHR) also recognizes the right to

freedom of expression.41 In Section 2 of that same Article, however, the ECHR clarifies that

those rights are not unlimited. Freedom of expression “may be subject to such formalities,

conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic

society, in the interests of national security, territorial integrity or public safety.” Article 19 of

the International Covenant on Civil and Political Rights (ICCPR) reiterates that everyone has the

right to freedom of opinion and freedom of expression, and that they are free to express

40 Universal Declaration of Human Rights, (GA res 217A (III), UN Doc A/810 adopted in 1948), art 19.

41 European Convention on Human Rights (adopted 4 November 1950, entered into force 3 September 1953), art

10,§ 1.

2

themselves through any medium they choose.42 Yet, the ICCPR also recognizes that these

freedoms are subject to certain measures for the protection of national security or the public

order.43

National security and public safety are precisely the reasons which allow Bemidia to enact the

IRA. Section (a) of the IRA requires any entity operating a website to collect and verify the

contact information of any “users,” before allowing these individuals to post to a forum or use

the site. The IRA is a realistic and precise means of regulating activity which places Bemidian

citizens in danger. Bemidia is not abolishing freedom of expression but, rather, taking reasonable

and proportionate measures to protect its national security and its citizens. Of particular concern

to the Bemidian government is the Military Tracker forum which provides accurate and nearly

real-time information about military movements. The information provided therein has already

proven to be dangerous and a threat to national security. On two separate occasions, the

government has attempted to prevent explosions and failed while, instead, bombs exploded at

sites from which the military had recently left. These threats to national security call for the

collection of information which can help prevent future terrorist attacks. Consequently, Section

(a) does not violate freedom of expression.

B. Any restriction on the freedom of speech must be prescribed by law, pursue a legitimate

purpose, and be necessary for a democratic society.

42 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, art 19, § § 1, 2. 43 ICCPR art 19, § 3.

3

National security is a paramount concern for Bemidia – and any state. On the other hand,

the requirements in Section (a) of the IRA are not a disproportionate infringement of speech or

an insurmountable burden to OpenBemidia. In Lingens v Austria, the ECtHR determined that to

be in agreement with Art. 10(2) of the ECHR, any restriction on the freedom of expression must

meet three criteria: it must be prescribed by law, pursue a legitimate purpose, and ‘be necessary

in a democratic society.’44

The idea that a restriction of free speech must be ‘necessary in a democratic society’ has

also more recently been upheld in Ergin v Turkey.45 In Lingens, the applicant was a reporter who

had published articles criticizing a political candidate and exposing his involvement in Nazi

politics.46 Lingens was subsequently charged with libel.47 The ECtHR unanimously held that

there had, indeed, been a violation of Lingens’ right to freedom of speech and press.48 Lingens’

articles were of particular importance to the public because they dealt with political issues during

election time.49 The applicant in Ergin was the editor of a newspaper which published an article

critical of Turkey’s military draft.50 A military court then charged Ergin with incitement to avoid

military service.51 In its analysis, the ECtHR noticed that although the words in the article

appeared ‘hostile to military service, they [did] not exhort violence or incite armed resistance or

44 Lingens v Austria (1985) 7 EHRR CD 446, [66].

45 Ergin v Turkey (2008) 47 EHRR 36, [35].

46 Lingens (n 44), [66].

47 ibid.

48 ibid [86].

49 ibid [73].

50 Ergin (n 45), [7].

51 ibid [8].

4

rebellion.’52 Because the words used in the article were not of a hostile or violent nature, the

ECtHR found ‘no pressing social need’ to restrict Ergin’s speech.53 In other words, the restriction

of Ergin’s speech was not ‘necessary in a democratic society.’54 The ECtHR held that the

restriction was a violation of Article 10 of the ECHR.55

Gül v Turkey concurs with the Elgin holding. In Gül , three applicants were arrested and

charged by the government because they had ‘aided and abetted an illegal organization.’56 In

fact, they were convicted because they possessed books and periodicals in favor of an illegal

organization, had participated in lawful and peaceful demonstrations, and had shouted

stereotypical leftist slogans during said demonstrations.57 The ECtHR only analyzed the last of

the three criteria mentioned in Lingens because the first two were clearly met. The only question

was whether the measures taken were necessary.58 The Court further asked whether the measures

were ‘proportionate to the legitimate aims pursued.’59 They found the answer to be no. The

ECtHR held the applicants’ right to expression had been violated.60 Though the slogans were

leftist, they could ‘not be interpreted as a call for violence or an uprising’ and, as such, the

applicants’ conduct could not have affected national security.61 52 Ergin (n 45), [34].

53 ibid [35].

54 ibid.

55 ibid.

56 Gül v Turkey (2011) 52 EHRR 38, [33].

57 ibid.

58 ibid [35].

59 ibid [37].

60 ibid [45].

61 ibid [41], [43].

5

In the case at hand, however, the speech being restricted is of a violent nature and is not

in the public interest. What the bloggers write about actually harms society. OpenBemidia allows

anyone to create a forum or post on forums and all that was required prior to the IRA was an

email address. Now, the IRA is a reasonable, proportionate law which aims to prevent future

attacks by identifying the individuals who post information on OpenBemidia which threatens

national security. Bemidia already has a law in place prohibiting the publication of ‘military

secrets’ – including the troops’ locations- yet, the Military Tracker forum provides almost real-

time information of the military’s movements. This information has led to dozens of deaths. The

IRA requirements in Section (a) are not intended to restrict speech, but rather aimed at

preventing future attacks and security breaches. The requirements in Section (a) are prescribed

by law, are aimed at a legitimate purpose, and there is a pressing need for these measures. The

requirements, thus, do not violate the freedoms of expression or opinion.

II. The Republic of Bemidia, in accordance with national security interests, asks the court

to uphold the law requiring OpenBemidia to disclose to the government identity

information, “following” information, and historical location information about its users.

Applicant is arguing that the IRA, which demands disclosure of identity information and

historical location information about the users of OpenBemidia, is on its face against

international law. However, according to both the ECHR and also the ACHPR, States have

found the right to free speech along with privacy to be restricted when applied to national

security purposes.62 According to the Johannesburg Principles on National Security, Freedom

of Expression and Access to Information, Bemidia’s law meets the three part test as laid out and 62 ECHR, art 10; African Charter on Human and People’s Rights (adopted 27 June 1981, entered into force 21 October 1986) arts 9,11; Munim Abdul and Others v Director of Public Prosecutions (2011) EWHC 247 [24]; Nigeria Media Rights Agenda v Nigeria (2000) AHRLR 262 (ACHPR 2000) [56]; Tonsbergs Blad As and Haukom v Norway (App. No 510/04) 1 March 2007.

6

which has been followed by the court to limit individual rights for national security purposes.63

According to the two prong test laid out in Hutchenson, Bemidia argues that the law passes the

test as laid out for national security purposes for these restrictions.64

A. National security and public safety concerns can trump an individual’s

fundamental right to privacy according to the ECHR and the ACHPR.

National security is of the utmost importance for Bemidia and the requirement to disclose

the information dealing with identity, “following” information, and historical location

information deals with this objective. According to Article 10 of the ECHR, every person is

granted the right to freedom of expression and the ability to express their ideas about their

government in a safe way without repercussions.65 However, these rights have limitations to

them and this is seen in the second subsection of Article 10: ‘the exercise of these freedoms,

since it carries with it duties and responsibilities, may be subject to such formalities, conditions,

restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the

interests of national security, territorial integrity or public safety, for the prevention of disorder

or crime.’66 This has also been held in the ECtHR case Ergin v Turkey, which the court said

sanctions which impose restrictions on a person’s right to freedom of expression can be limited

when it deems the law necessary in a democratic society.67 Freedom of expression is not

63 The Johannesburg Principles on National Security, Freedom of Expression and Access to Information (November 1996) art 19, London; Hutcheson v News Group Newspapers Ltd & Ors (A2/2010/2863) HCJCA 7 September 2011, [7]. 64 Hutcheson [7]. 65 ECHR art 10; ACHPR arts 9,11. 66 ECHR art 10.

67 Ergin (n 45) [2]; Sadak v Turkey, (2003) 36 EHRR 23 [41].

7

necessarily a universal right and may be subjected to restrictions.68 The court in Ergin found

there had been a violation to the freedom of expression as the expression did not incite violence

or rebellion, which the court deemed was necessary to restrict individual’s rights.69 Also, the

court in Pinto Coelho v Portugal determined that the expression that was restricted needed to be

‘necessary in a democratic society’ for the right to trump the national security or public safety

concerns.70 Bemidia contends the public concern greatly outweighs the private interest in this

situation.

Restrictions on fundamental rights have been imposed on an international level in many

State constitutions. According to the Constitution of India Article 19, the State may restrict

fundamental rights when it specifically combats national security or public safety.71 This is also

seen in Article 40 of the Constitution of the People’s Republic of China, which has a similar

clause restricting fundamental rights for the betterment of society and public safety.72

B. The requirement that OpenBemidia disclose identity information is valid as

it serves an important government interest.

The requirement to report the identity of the users can be upheld as was seen in NAACP v

Alabama. This United States Supreme Court case held that there must be ‘an overriding valid

interest of the State’ to compel the disclosure of individual membership.73 The court found that

68 Sadak [41]. 69 ibid; Surek v Turkey, (1999) 7 BHRC 339. 70 Pinto Coelho v Portugal, (2011) App. No. 28439/08 [40], [41]. 71 CONST OF INDIA, art 19. 72 CONST. OF PEOPLE’S REPUBLIC OF CHINA, art 40. 73 NAACP v Alabama, 357 US 449, 460 (1958).

8

the unnecessary requirement to disclose identities could inhibit participation.74 Bemidia contends

the actions taken rise to the level of a valid state interest in that the disclosure goes directly to

combat terrorism and stop the deaths of innocent civilians. The killing of dozens of innocent

civilians and members of Parliament need to be fought and the disclosure of identity information

would assist Bemidia in bringing terrorists to justice and preventing future attacks. Courts have

also found that there must be a reasonable expectation of privacy for an individual to invoke this

request, and Bemidia contends posting on website-based forum does not give rise to a reasonable

expectation of privacy as this is the ‘world wide web’ and information is open to all.75

According to Article 10 of the ECHR, the right of freedom of expression can be limited

when it comes to the protection and safety of the people in national security aspects. Bemidia is

asking for the disclosure of identities tied to OpenBemidia due to the growth of violence that has

occurred in Bemidia. For the security of others, Bemidia is asking for the disclosure of the

identities of those who post on the forum. Bemidia has enacted these protocols for the gravely

important purpose of protecting the citizens of Bemidia and for the protection of peace through

the country. As with Ergin, the court stated that the expression, to be limited, must be necessary

to a democratic society and also found the expression to not incite a rebellion or illegal

activities.76 Bemidia has enacted the protocols because there is currently a rebellion and dozens

of innocent civilians along with members of Parliament have been killed.

74 NAACP at 460. 75 MGN Ltd v UK (2011) 53 EHRR 5 [87]; Countryside Alliance v UK (2010) 50 EHRR SE6 [42]; California v Ciarolo, 476 US 207, 211 (1986). 76 Ergin (n 45) [H6].

9

C. Bemidia meets the test to impose restrictions on an individual’s freedoms as laid

out by the Johannesburg Principles on National Security, Freedom of Expression

and Access to Information.

According to the Johannesburg Principles on National Security, Freedom of Expression

and Access to Information, there is a three part test laid out to describe the security measures a

State must take to impose restrictions on the freedom of expression for national security

reasons.77 The first part is that the expression or information imposes a serious threat to national

security measures.78 The second part is that any restrictions imposed be the least restrictive

means necessary to achieve the governmental interest.79 Last, is that the restriction follows the

nature laws of a democratic society.80 This test as laid out does not impose a balancing test but

rather the government must meet each of these requirements to impose the restriction desired.81

The information and expression being released on OpenBemidia imposes a serious threat

to Bemidian national security. There have been several attacks throughout the northern portion

of Bemidia and many lives have been lost. These attacks, through investigation, have been

linked through the forums of OpenBemidia and the posts that are being made. For the security

purposes, to obtain information about these individuals and cross check potential suspects, it is

important to Bemidia that the identities of these individuals be revealed. The second portion of

the test is met as these are the least restrictive ways to impose the national security measures.

77 Johannesburg; Hutchenson (n 62). 78 Johannesburg. 79 ibid.

80 ibid.

81 ibid.

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The identification of these individuals is by no means a highly restrictive means or imposing

obligations. Therefore, Bemidia believes these laws and requirements are the least restrictive

means possible. Finally, Bemidia holds that these laws follow the democratic forms of

government on a global scale. Bemidia believes that none of these laws goes outside the means

of a democratic society.

D. Bemidia meets the standard the court has laid out to restrict individual freedoms

as laid out in the two-part Hutchenson test.

In Hutchenson, the court lays out another two-prong test to determine if privacy can be

compromised for the better of society.82 In Hutchenson, the claimant had two families, one of

which was secret and it was the wish of the claimant to keep this second family secret as he was

a public figure.83 The court laid out a two prong test to determine privacy and to restrain

publication of personal information.84 The first element was it was necessary to demonstrate

that the claimant had a reasonable expectation of privacy in respect of the subject-matter in

question, having regard to Article 8 of the ECHR.85 The second element was that the claimant

must show there was no countervailing public interest to outweigh his right to protect that

information.86

Bemidia believes they have met the standard as set out in Hutchenson. Bemidia has met

the first standard in that there was no reasonable expectation for the users to post online and yet 82 Hutcheson, [7]. 83 ibid [5]. 84 ibid [7]. 85 ibid.

86 ibid.

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remain anonymous. Citizens who post online are always confronted with the notion that once

something is on the world-wide web, it is public for all to see. There was nothing set out in the

process of signing up for an account that laid out the fact that users would remain anonymous.

Bemidia has met the standard for the second test in that the public interest greatly outweighs the

privacy as requested by the users. There have been several terrorist attacks that can be attributed

and connected to the users of these forums on OpenBemidia. These attacks and the safety of the

public has become a great national security concern for Bemidia and therefore the necessity for

the identification of these individuals outweighs their privacy interest.

According to Ekimdzhiev v Bulgaria, the court has set out safeguards that must be in

place for the law to comport with Article 8 of the ECHR.87

To ensure the effective implementation of the above principles, the Court has

developed the following minimum safeguards that should be set out in statute law to

avoid abuses: the nature of the offences which may give rise to an interception

order; a definition of the categories of people liable to have their communications

monitored; a limit on the duration of such monitoring; the procedure to be followed

for examining, using and storing the data obtained; the precautions to be taken

when communicating the data to other parties; and the circumstances in which data

obtained may or must be erased or the records destroyed.88

Bemidia has comported the law to follow these guidelines as set out in Ekimdzhiev.

Bemidia has first set out the nature of offense which gives rise to the order to mandate

87 Association for European Integration and Human Rights and Ekimdzhiev v Bulgaria App no 62549.00 (ECtHR, 28 June 2007) [76]. 88 ibid.

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information from OpenBemidia. The nature of offenses is terrorism, as these are the offenses

which have given rise to the necessity in the first place. The killing of innocent people for

political means is the nature of the offenses which will give rise to the order for demanding

information off the website about their users. The durational limit is implied in the law as when

the conflict decreases and the terrorist attacks decrease, then there can be some digression with

the information being asked. Next, for the procedures of storing the data, examining the data,

transferring the data, and finally the end result of terminating the data, Bemidia has no previous

history of corruption and thus contends these issues will not present problem. Although not laid

out exactly within the language of the law, Bemidia would have securities in place to combat

these issues and resolve them in an appropriate manner.

III. The Republic of Bemidia, in accordance with national security, asks the Court to

uphold the requirement that OpenBemidia report to the government location information

about the users of the MLM forum in real time.

Respondent holds that the court should uphold the law which requires OpenBemidia to

report to the government the real-time location of users of the MLM forum. This is all for

national security purposes. According to the ECHR, national security can trump individual

rights such as expression, speech, and privacy.89 Also, the court has furthered this theory in

Ferdinand as applied and thus shows how this has been used by governments in the past.90

Finally, Respondent will show that according to United States Supreme Court, the Court has

89 ECHR, arts 8, 10. 90 Ferdinand v MGN Ltd, (2011) EWHC 2454.

13

found a suppression of speech or assembly to be unconstitutional unless there is an incitement to

illegal activity, as there is currently in Bemidia.91

A. National security concerns can trump an individual’s right to privacy according

to Article 8 of the ECHR.

The freedom of privacy may be restricted when possible implications could be a risk to

national security.92 According to Ferdinand v MGN Ltd., the court used Article 8 of the ECHR

to extend the limitations of not only the freedom of expression, but also the freedom of privacy.93

In Ferdinand, a local newspaper wrote and published an article that expressed a report of an

illicit affair with Ferdinand, who at the time was a very well-known footballer and well known

through the media.94 The court furthers the idea of the right to a private life by investigating

Article 8 of the ECHR, and state that although individuals have the right to a private life from

both the State and from media entities, these rights are not absolute.95 The court furthered the

notion that there is no right to privacy when it could conflict with national security issues,

territorial integrity or public safety.96

Bemidia is concerned and wants OpenBemidia to report location information when

posting because, recently, the efforts to combat terrorism have been defeated because of posts

showing where military support is located. By these posts, Bemidia believes their efforts to

91 Whitney v California, 274 US 357 (1927). 92 ECHR, art. 8.

93 Ferdinand (n 90) [39]; ECHR (n 41), art 8. 94 Ferdinand [2].

95 ibid [38].

96 ibid.

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combat the terrorist attacks and save lives have been thwarted and, therefore, want the posts by

members of the MLM forum to relay their location.

B. Incitement to illegal activities is sufficient for the government to impose

restrictions on the freedoms of expression and privacy.

Bemidia asks for the location information in real time for safety measures and does not

believe that this requirement infringes the rights of assembly and privacy of its citizens. In 1929,

the Supreme Court of the United States upheld a conviction for peaceful assembly as the group

following the Communist Party at that time was said to go against the Criminal Syndicalism

Act.97 The court held that the law was valid as it described the acts and prohibited assembly on

the face of the law thus permitting citizens to understand the consequences of their actions.98

However, this case was later overturned in 1969, in Brandenburg v Ohio.99 The court looked at

Ohio’s Criminal Syndicalism Act and declared it unconstitutional as it was a denial of the right

to assembly and also dealt with privacy issues.100 The court declared the law unconstitutional

because it didn’t hold a difference in that people could be prosecuted if their actions were

distinguished by ‘incitement to imminent lawless action.’101

Bemidia holds that the IRA would pass the Court’s analysis, as the actions being taken

are inciting others to commit unlawful acts. The requirement to report location information is for

national security purposes and, therefore, goes to prevent unlawful acts. The real-time location 97 Whitney at 359.

98 ibid at 368.

99 Brandenburg v Ohio, 395 US 444, 448 (1969); US v Fullmer, 584 F 3d 132 (2009); Herlog v Hustler Magazine Inc., 814 F 2d 1017 (1987). 100 Brandenburg at 448. 101 ibid.

15

information requirement for MLM users would go for national security purposes and would not

violate the privacy or assembly of the individual as their actions have led to the incitement of

illegal activity.

IV. The First Family Protection Act does not violate the right to freedom of expression

because the information posted was a breach of the right to privacy and, furthermore, the

information created a security problem.

Just as there is a right to freedom of expression, everyone has a right to privacy.102 When

these two rights are in conflict, the court must balance the value of the expression against the

intrusion into one’s privacy.103 In addition, the blogs tracing the First Family’s daily lives

presented a security threat to Bemidia.

A. When the right to freedom of expression and the right to privacy conflict, the decisive factor is whether or not the expression contributes to debates of public interest.

Leading international documents recognize that everyone has the right to respect for his

private and family life. Von Hannover v Germany exemplifies how, in certain circumstances, the

right to privacy outweighs the right to freedom of expression.104 In Von Hannover, the applicant

was Princess Caroline, the eldest daughter of Prince Rainier III of Monaco. She herself is not a

head of state, but she is part of the Prince’s family and she was also the president of

humanitarian and cultural organizations.105 ‘She does not, however, perform any function within

or on behalf of the State of Monaco or one of its institutions.’106 In her suit, Princess Caroline 102 UNDR (n 40) art 12; ICCPR (n 41) art 17, § 1; ECHR (n45) art 8, § 1. 103 Von Hannover v Germany (2005) 40 EHRR 1. 104 ibid. 105 ibid [9].

106 ibid [8].

16

alleged that ‘she was constantly hounded by paparazzi who followed her every daily movement,

be it crossing the road, fetching her children from school, doing her shopping, out walking,

practicing sport or going on holiday.’107 The ECtHR in explained Von Hannover, that ‘the

decisive factor in balancing the protection of private life against freedom of expression should lie

in the contribution that the published photos and articles make to a debate of general interest.’108

The Court held that there had, indeed, been a violation of Article 8 of the ECHR because the

contribution to the public interest was minimal, but the intrusion into her life was great.109

Jacqueline Kennedy Onassis suffered through a similar intrusion and sued the paparazzo

who was interfering with her life and that of her children.110 The paparazzo so insinuated himself

into the lives of the president’s widow and children, that he took pictures of John, Jr. riding his

bike in Central Park and nearly caused an accident by jumping in front of his bike.111 He also

‘interrupted Caroline’s tennis lessons and invaded the children’s private schools.’112 The court

found the paparazzo guilty of harassment and invasion of privacy, inter alia, despite the fact that

he argued his actions were protected by the US First Amendment.113 The court in this case also

performed a balancing test and held that the photographs provided a minor public interest as

compared to the great invasion of privacy the Kennedy widow and children suffered.114 The

107 Von Hannover (n 103) [44].

108 ibid [76].

109 ibid [80].

110 Galella v Onassis, 487 F 2d 986 (1973).

111 ibid at 992.

112 ibid.

113 US CONST amend I; Galella (n 110) at 994.

114 Galella (n 110) at 995.

17

court also held that the intrusion into one’s private life ‘may be no greater than that necessary to

protect the overriding public interest.’115

The Compromis establishes that the Vislio Tracker, Carla Tracker, Talia Tracker and

Daria Tracker forums ‘pinpoint and document virtually every public activity undertaken by the

Prime Minister and the other members of his immediate family.’116 Nothing in the Compromis

suggests that the information and photographs taken of the PM’s family were for the public

interest. Quite the opposite, pinpointing the schedules and daily movements of the PM and the

First Family is a danger to national security. Bemidia is currently experiencing a period of

terrorism and instability. The Mondahi are vocalizing their wish to secede and the MLM are

creating panic by bombing public places. Announcing the everyday whereabouts of the PM and

his family during a stable time would be a security problem; during a time of turmoil, it is nearly

an invitation to attack the PM and his Family. For this reason, the injunction the FFPA is seeking

against previously disseminated content is justified and lawful.

Furthermore, while the PM’s movements may, of course, be a matter of public interest,

the private activities of his family members are not. It does not matter whether the activities take

place in public places, they can still be regarded as part of one’s private life. In Von Hannover,

the court found that there is a ‘zone of interaction of a person with others, even in a public

context, which may fall within the scope of “private life.”’117 The Talia Tracker forum, for

example, included information about the PM’s daughter going to school, leaving school, and

what she had for lunch. None of this information is fodder for public debate. The fact that Talia

115 Galella (n 110) at 995.


117 Von Hannover (n 103) [50].

18

is the PM’s daughter does not warrant that her privacy be violated. As was the case with Princess

Caroline in the Von Hannover case, photographs of Talia’s private life are protected under the

UNDR, ICCPR, and ECHR118. The FFPA is lawful because it is a controlled measure aimed at

protecting the First Family without unduly burdening the freedom of expression. The FFPA only

prohibits ‘the publication of “private information” about the Prime Minister’s family without the

person’s or guardians’ prior consent.’119 The FFPA also does not prohibit any information older

than 90 days at the time it is published. The PM’s wife and children have a right to privacy

which, in this case, outweighs the bloggers’ right to freedom of expression.

118 UNDR (n 40) art 12; ICCPR (n 42) art 17, § 1; ECHR (n 41) art 8, § 1. 119 Compromis, para 20.

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PRAYER FOR RELIEF

For the foregoing reasons, the Republic of Bemidia respectfully requests this Honorable Court to

adjudge and declare as follows:

1. Section (a) of the IRA requiring OpenBemidia to collect and verify name and contact

information before allowing a ‘user’ to register for an account and post to a forum is a reasonable

measure aimed at protecting Bemidia and its population from further terrorist attacks and, due to

these national security concerns, it does not violate the right to freedom of expression.

2. The law requiring OpenBemidia to disclose to the government identity information,

‘following’ information, and historical location information about its users does not violate the

freedom of privacy according to the Universal Declaration of Human Rights, as national security

concerns outweigh any restrictions.

3. The requirement that OpenBemidia report to the government real-time location information

about the users of the MLM forum does not violate the freedom of expression, as national

security concerns outweigh the personal freedoms in question and, therefore, the law should be

upheld.

4. The FFPA is not a violation of the freedom of expression because, in this case, the First

Family’s right of privacy outweighs others’ freedom of expression.

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