Oxford Respondent

86
220R THE UNIVERSAL FREEDOM OF EXPRESSION COURT IN THE UNIVERSAL COURT OF HUMAN RIGHTS THE 2014 MONROE E.PRICE MEDIA LAW MOOT COURT COMPETITION SANG& CENTIPLEX. (APPLICANTS) V. REPUBLIC OF MHUGAN (RESPONDENT) CASE CONCERNING RIGHTS AND OBLIGATIONS UNDER THE UNIVERSAL DECLARATION OF HUMAN RIGHTS -MEMORANDUM for theRESPONDENT-

description

Price Media

Transcript of Oxford Respondent

Page 1: Oxford Respondent

220R

THE UNIVERSAL FREEDOM OF EXPRESSION COURT

IN

THE UNIVERSAL COURT OF HUMAN RIGHTS

THE 2014 MONROE EPRICE MEDIA LAW MOOT COURT COMPETITION

SANGamp CENTIPLEX(APPLICANTS)

V

REPUBLIC OF MHUGAN(RESPONDENT)

CASE CONCERNING RIGHTS AND OBLIGATIONS UNDER THE UNIVERSAL DECLARATION OF HUMAN RIGHTS

MEMORIAL FOR THE RESPONDENT

4984 WORDS

-MEMORANDUM for theRESPONDENT-

TABLEOFCONTENTS

LIST OF ABBREVIATION__________________________________________________

INDEX OF AUTHORITIES________________________________________________

STATEMENT OF RELEVANT FACTS _______________________________________

STATEMENT OF JURISDICTION __________________________________________

QUESTIONS PRESENTED__________________________________________________

SUMMARY OF ARGUMENTS_____________________________________________

ARGUMENTS_____________________________________________________________

A THE DAMAGES IMPOSED ON SANG ARE NOT CONSISTENT WITH THE

PROVISIONS OF UDHR__________________________________________________

I The damages restrict Article 19UDHR____________________________________

II The damages impose a restriction on Article 20 UDHR_______________________

III The damages impose a restriction on Article 17 UDHR_______________________

IV The damages are not permissible under Article 29 UDHR_____________________

V The dissemination does not violate the Wiretap Act and Article 12

UDHR________

VI Right to receive and disseminate information is protected under international

law___

B THE REQUIREMENT TO DISCLOSE THE SOURCE OF THE RECORDED

VOICEMAIL IS NOT CONSISTENT WITH THE PROVISIONS OF THE

UDHR_______________

I The article imposes a restriction on Article 19 UDHR_________________________

II The requirement indirectly affects the right of association under Article 20 UDHR___

-MEMORANDUM for theRESPONDENT-

III The requirement contravenes Article 12 UDHR______________________________

IV The requirement is not permissible under Article 29(2) UDHR__________________

C THE FINDING OF THE COURT THAT THE IMPUGNED INFORMATION

SHALL NOT APPEAR ON THE FIRST PAGE OF THE SEARCH RESULTS

OUGHT TO BE SET

ASIDE_________________________________________________________

I The requirement restricts scope of Article 19UDHR__________________________

II The requirement violates Article 20UDHR_________________________________

III The requirement contravenes Article 17 UDHR_____________________________

IV The requirement is impermissible under Article 29(2) UDHR__________________

D THE PROVSIONS OF THE 2013 SEARCH PRIVACY ACT ARE INCONSISTENT

WITH THE PROVISIONS OF THE UDHR__________________________________

I ROM cannot demand restriction on the disclosure of the search queries without

violating Article 19 of the UDHR________________________________________

II The requirement is impermissible under Article 29 (2) UDHR__________________

III Requirement restricts Article 8 UDHR____________________________________

-MEMORANDUM for theRESPONDENT-

LIST OF ABBREVIATIONS

para Paragraph

AfCHR African Convention on Human and Peoplesrsquo Rights

ACtHPR African Court of Human and Peoplesrsquo Rights

ACHR American Convention on Human Rights

AIR All India Reporter

App no Application Number

Art Article

cf Confer from

cl Clause

EC European Council

EU European Union

ECHR European Convention on Human Rights

ECtHR European Court of Human Rights

ECmHr European Commission of Human Rights

EHRR European Human Rights Reports

-MEMORANDUM for theRESPONDENT-

SPA Search Privacy Act

HRC Human Rights Committee

IACHR Inter American Court of Human Rights

ICCPR International Covenant on Civil and Political Rights

Prin Principle

ROM Republic of Mhugan

s Section

UDHR Universal Declaration of Human Rights

-MEMORANDUM for theRESPONDENT-

LIST OF AUTHORITIES

ARTICLES AND JOURNALS

Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government

Ethics(The ANNALS of the American Academy of Political and Social

Science1995 )

Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5

October 2013

Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt

accessed 5 October 2013

Law Media Definition of Media Law And Ethics lt httpmedia-

lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed

5 October 2013

Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October

2013

Manner of collection of personal information (principle four) lt

httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-

of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

-MEMORANDUM for theRESPONDENT-

Public Orderlthttpwwwusiporgguiding-principles-stabilization-and-

reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October

2013

Domestic

Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt

accessed 6 October 2013

What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-

publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October

2013

Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University

Press Cambridge 1992) 115

Electronic Privacy Information Centre lsquoData Retentionrsquolt

httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October

2013

Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

Susan Freiwald lsquoUncertain Privacy Communication Attributes After the

Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

Organisation for Economic Co-operation and Development lsquoOECD

Guidelines on the Protection of Privacy and Transborder Flows of Personal

Datarsquo

lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1

_ 1_100htmlgt accessed 3 October 2013

-MEMORANDUM for theRESPONDENT-

Electronic Privacy Information System lsquoRecords Computers and the Rights

of Citizens Report of the Secretarys Advisory Committee on Automated

Personal Data Systems July 1973rsquo

lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

Reasonable Expectation of Privacylthttplegal-

dictionarythefreedictionarycomReasonable+expectation+of+privacygt

accessed 9 October 2013

Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo

(1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData

Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56

Stanford Law Review 191

Legal protection for Journalistic Sourceslt

httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5

October 2013

Mark duezersquo What is journalismProfessional identity and ideology of

journalists reconsidered lthttpjousagepubcomcontent64442abstractgt

accessed 9 October 2013

BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt

httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16

September 2013

Privacy and freedom from state

intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-

-MEMORANDUM for theRESPONDENT-

from-state-intrusiongt accessed 9 October 2013

Freedom from suspicion Principles to protect freedom of expression and

privacy against mass surveillancelt

httpwwwarticle19orgresourcesphpresource37186enfreedom-from-

suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-

mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013

Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013

The substance of the right to effective judicial protection against violation of

social rights lt

httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt

accessed 8 October 2013

African Commission on Human and Peoplesrsquo Rights lsquoResolution on the

Adoption of the Declaration of Principles on Freedom of Expression in

Africa (2002)rsquo Res 62(XXXII)02 Principle XV

CASES OF THE AFRICAN COURT OF HUMAN AND PEOPLESrsquo

RIGHTS

Referred to in

Media Rights Agenda and Others v Nigeria Commnos 2 23

-MEMORANDUM for theRESPONDENT-

10593 1289413094 and 15296 (1998) (ACHPR)

Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

CASES OF THE EUROPEAN COURT OF HUMAN RIGHTS

Referred to in

Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR

20 May 1999) 65

Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20

May 1999)

Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

Jersild v Denmark App no 159808 (ECHR 23 September 1994)

Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June

2007)

Handyside v United Kingdom App no 549372( ECHR 7 December 1976)

-MEMORANDUM for theRESPONDENT-

Klass and Others v Germany App no 502971(EHRR 6 September 1978)

Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November

2004)

KU v Finland App no 287202 (ECtHR 2 March 2009

Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008)

Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

Worm v Austria (1997) 25 EHRR 454

Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

Silver and Others v United Kingdom Application no 594772 (25

March 1983)

The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November

1991)

Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

-MEMORANDUM for theRESPONDENT-

Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

Kruslin v France App no 1180185(ECHR 24 April 1990)

Huvig v France App No 1110584( ECHR 24 April 1990)

Burghartz v Switzerland (1994) 18 EHRR 101

Von Hannover v Germany (2005) 40 EHRR 1

Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002)

Nebraska Press Association v Stuart427 US 539 559 (1976)

PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001)

Peck v United Kingdom (2003) 36 EHRR 41

New York Times Co v Sullivan 376 US 254 (1964)

Lingens v Austria App no 981582 (ECtHR 8 July 1986)

Friedl v Austria 1522589 (ECHR 31 January 1995)

PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001)

Peck v United Kingdom (2003) 36 EHRR 41

Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR

18 January 2011)

-MEMORANDUM for theRESPONDENT-

X and Y v Netherlands App no 897880(ECHR 26 March 1985)

ETK v News Group Newspapers [2011] EWCA Civ 439

Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no

5422400

(ECtHR 12 December 2000)

Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902

(ECtHR

13 May 2003)

Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006)

Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR

28 March 1990)

HRH Princess of Wales v MGN Newspapers App no1306997 (ECtHR 11

December 2003)

Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July

2009)

-MEMORANDUM for theRESPONDENT-

Klass and Others v Germany (App no 502971)Application

No 502971(ECHR 6 September1978)

Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25

February 1992)

Plon(socieacuteteacute) v FranceApp no 5814800(ECHR 18 May 2004)

Worm v Austria (1997) 25 EHRR 454

X and Y v Netherlands App no897880(ECHR 26 March 1985)

Funke v France App no 1082884(ECHR 25 February 1993) Keegan v

Ireland (1994) 18 EHRR 342

Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

UNITED STATES

Referred to in

McIntyre v Ohio Elections Commission 514 US 334 (1995)

Buckley v Valeo424 US 1 (1976)

Branzburg v Hayes 408 US 665

-MEMORANDUM for theRESPONDENT-

OShea v Littleton 414 US 488 (1974)

Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

Laird v Tatum 408 US 1 (1972)

Meese v Keene 481 US 465 (1987)

Niemotko v Maryland 340 US 268 (1951)

Shuttleworth v Birmingham 394 US 147 (1969)

Frisby v Schultz 487 US 474 (1988)

Katz v United States 389 US 347 (1967)

Acrara v Cloud Books Inc478 US 697 (1986)

Alexander v US 509 US 544 (1993)

Gertz v Welch 418 US 323 (1974)

Time Inc v Firestone 424 US 448 (1976)

Bartnicki v Vopper532 US 514 (2001)

Hutchinson v Proxmire443 US 111 (1979)

Wolston v Readerrsquos Digest Association Inc443 US 157 (1979)

Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981)

-MEMORANDUM for theRESPONDENT-

Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987)

Cox v New Hampshire 312 US 569 (1941)

Freedman v Maryland 380 US 51 (1965)

Madsen v Womenrsquos Health CenterInc et al 512 US 753 (1994)

United States v OBrien 391 US 367 (1968)

Turner Broadcasting System Inc v FCC 512 US 622 (1994)

Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton

536 US 150 (2002)

Ward v Rock Against Racism 491 US 781 (1989)

Galella v Onassis 487 F 2d 986 (1973)

Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

Bartnicki v Vopper532 US 514 (2001)

R v Oakes [1986] 1 SCR 103

New York Times Co v United States 403 US 713

Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186

(1984)

-MEMORANDUM for theRESPONDENT-

HUMAN RIGHTS COMMITTEE

Referred to in

Aduayom Diasso and Dobou v Togo Communications Nos 4221990

4231990

and 4241990 UN Doc CCPRC51D4221990 4231990 and 4241990

(1996)

ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN

Doc CCPRC85D11802003 (2006) (UN Human Rights Committee)

ENGLISH CASES

Referred to

in

A v B and Anr[2002] EWCA Civ 337 (UK)

McKennitt v Ash [2007] 3 WLR 194

Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK)

D v L [2004] EMLR 1 (UK)

Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK)

Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK)

-MEMORANDUM for theRESPONDENT-

R v Broadcasting Standards Commission ex parte British Broadcasting

Corporation (Liberty intervening) [2000] 3 All ER 989 (UK)

R v Loveridge[2001] EWCA Crim 973 (UK)

INDIAN CASES

Referred to in

Zimbabwe

Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231

REGIONAL AND INTERNATIONAL INSTRUMENTS

African Charter on Human and Peoplesrsquo Rights (adopted 27 June

1981entered into force 21 October 1986) (1982) 21 ILM 58

American Convention on Human Rights (adopted 22 November

1969entered into force 18 July 1978)

European Convention on Human Rights (adopted 4 November 1950

entered into force 3 September 1953)

International Covenant on Civil and Political Rights (adopted 16

-MEMORANDUM for theRESPONDENT-

December 1966 entered into force 23 March 1976) 999 UNTS 171

Universal Declaration of Human Rights (adopted 10 December 1948

UNGA Res 217 A(III)

CONSTITUTION

The Constitution of United States of America 1788

The Constitution of Argentina 1853

The Constitution of Belgium 1831

The Constitution of Brazil 1988

The Constitution Act of Finland 2000

The Constitution of India 1950

STATUTES

MISCELLANEOUS

-MEMORANDUM for theRESPONDENT-

Resolution 1003 (1993) on the ethics of journalism adopted by the

Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

Case Concerning the Arrest Warrant of 11 April 2000 (Democratic

Republic of the Congo v Belgium) (Merits) International Court of Justice

14 February 2002

21

Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary

Assembly of Council of Europe 26 July 1998 Article 14(i)

25

STATEMENT OF RELEVANT FACTS

-MEMORANDUM for theRESPONDENT-

ECONOMIC SCENARIO IN MHUGAN

1 The respondent country Republic of Mhugan is a country which obtained

independence in 1959 and since then it has had a parliamentary form of government1 Its

economy has grown rapidly since the late twentieth century fueled by a combination of

information technology industries manufacturing and financial services2

SOCIAL STATUS OF RHO

2 BansitSangnont better known by his stage name Rho is a pop music singer-

songwriter in Mhugan3 Rho after his music video for his song ldquoPokeacutePokeacuterdquo in 2011 became

very successful and was known throughout the world In early 2013 rumors began to

surface that Rho has been physically andor emotionally abusive to his wife an allegation

that Rho has vehemently denied4

COMPANIES PROVIDING INFORMATION ON SEARCH QUERIES

3 Centiplex Corporation based in Mhugan is the leading Internet services company in

Mhugan5 It runs an Internet search engine More than 80 of all search queries in Mhugan

are conducted through Centiplex and the remaining being conducted through Google6

Dexian is a global information services company based in the United States7 Its core

business is collecting aggregating analyzing and disseminating information relating to

1 Compromis para 1

2 Ibid

3 Compromis para 2

4 Compromis para 3

5 Compromis para4

6 Ibid

7 Compromis para 5

-MEMORANDUM for theRESPONDENT-

individuals8 Dexian claims to have records for almost 500 million people although those

records vary widely in their scope completeness and correctness9 The particular methods

that Dexian uses to combine sources and build individual records are not publicly known

and Dexian claims such information to be a trade secret10

4 Centiplex is a Dexian client and both buys and sells data to Dexian11 Prior to the

2013 Search Privacy Act described below no law or regulation in Mhugan restricted a

search enginersquos ability to collect disclose or use information12

ALLEGATIONS IMPOSED ON THON SANG

5 Thon Sang maintains an active blog on the Centiplex platform in Mhugan13 The ad

revenue goes to the centiplex and is not shared with the bloggers themselves14Sang is

ldquocelebrity-obsessedrdquo and his news is dedicated to Mhuganian celebrities15Sang has blogged

about the rumors of Rho abusing his wife writing that ldquoif true people should boycott Rhorsquos

music in protestrdquo16 On May 1 2013 Sang posted a voicemail that Rho left for his friend

8 Ibid

9 Ibid

10 Ibid

11 Compromis para 6

12 Ibid

13 Compromis para 7

14 Ibid

15 Compromis para 8

16 Ibid

-MEMORANDUM for theRESPONDENT-

TaurAklamit17 In the voicemail someone identifying himself as ldquoBansitrdquo said that he was

ldquofurious with my wife for not being more obedientrdquo and that ldquoI need to give her a good

smacking to show her whorsquos in chargerdquo18 Sang wrote in his post that he got this recording

from someone who tried to get into Aklamitrsquos voicemail Sang also wrote ldquoso the rumors are

true Boycott Rho and donrsquot even think about dancing the PokeacutePokeacuterdquo 19

6 The next day Sang posted again to gain more popularity- ldquoMore evidence this time

from Rhorsquos web searches which include lsquohow to control your wifersquo and lsquowhipping

techniquesrsquordquo Sang was very anxious to acquire information regarding Rho and therefore he

purchased Rhorsquos profile from Dexian for 20000 MHD which is approximately 002 Euros

7 On May 4 Rho held a press conference with his wife at his side where he stated

that he left the recorded voicemail for his friend TaurAlkamit and he would never even

dream of striking his wife He called Sang and whoever had recorded the voicemail

ldquovicious unethical and unprofessional rumor mongersrdquo who were ldquocriminals who deserve

to be punishedrdquo while his wife was busy listening to him and did not utter a word at the

conference On May 5 Sang again posted a reply stating that he was disgruntled by Rhorsquos

explanations

8 Sang clarified that the source of the voicemail had explained to him how he or she

had come across the message20 The source had entered Aklamitrsquos number by mistake

Aklamit and the source apparently shared the same password because neither had ever 17 Compromis para 9

18 Ibid

19 Ibid

20 Compromis para13

-MEMORANDUM for theRESPONDENT-

changed it from the default password for the voicemail system ldquo123456rdquo Before the source

had realized the mistake heshe clicked on the first message and heard it21 Suspecting that

the ldquoBansitrdquo on the message was in fact Rho the source then realized that this mailbox was

not hishers The source downloaded the copy of the message and sent the copy to Sang but

asking him not to reveal hisher identity22

PROVISIONS OF WIRETAP ACT

9 Mhuganian law makes it illegal under the Wiretap Act to ldquointentionally intercept or

obtain unauthorized access to any telephone or electronic communications whether in

transit or in storage23rdquo The Wiretap Act further makes it illegal for ldquoany person to

disseminate the contents of a telephone or electronic communications that the person knows

to have been unlawfully intercepted or obtained under this Act24rdquo The Wiretap Act provides

for both civil and criminal penalties Among the civil penalties are statutory damages up to

1000000 MHD The portion of the Wiretap Act described here contains an exception for

anyone acting in an official government capacity25

The Wiretap Act defines ndash

a) ldquodirectly accessedrdquo to include both (1) a link that leads directly to the material and

(2) any link that from the surrounding context reasonably indicates that it will lead

21 Ibid

22 Ibid

23 Compromis para14

24 Ibid

25 Ibid

-MEMORANDUM for theRESPONDENT-

to the prohibited material and does in fact lead to such material regardless of how

many links it takes to reach the prohibited material26

b) A search engine can meet its obligations under such an order by de-indexing the

relevant web pages but such de-indexing is not required so long as the relevant web

pages do not appear on the first page of search results27

c) The order remains in force unless and until the court rules against the plaintiff on

the Wiretap Act claim (or an appellate court rules against the plaintiff on this claim)

or the case is otherwise dismissed If the plaintiff prevails on the claim and

continues to prevail through any appeals the order effectively becomes permanent28

d) The Act provides for both civil and criminal penalties for a violation of such a

search engine order with statutory damages of up to 10000 MHD per day of

violation for a negligent violation and up to 1000000 MHD per day for an

intentional violation Criminal penalties are only available for an intentional

violation29

10 On May 8 2013 Rho sued Sang under the Wiretap Act for knowingly disseminating

the contents of unlawfully obtained communications30 Rho immediately applied for a search

engine order under the Act against Centiplex which the court granted31 The court

26 Compromis para15

27 Ibid

28 Ibid

29 Ibid

30 Compromis para16

31 ibid

-MEMORANDUM for theRESPONDENT-

ultimately ruled that Sang had violated the Wiretap Act and awarded statutory damages to

Rho of 400000 MHD In so ruling the court found under Mhuganian law that while the

sourcersquos initial hearing of the voicemail message may have been accidental the subsequent

downloading of the message to hisher computer was intentional and unauthorized under the

Wiretap Act and that furthermore because Sang had recounted on his blog all of the

relevant facts about the circumstances under which the source had acquired the voicemail

message Sang had the knowledge required to be liable under the Act32

11 Centiplex was given the search engine order by the court for disseminating the

contents of the recorded voicemail under the wiretap act and centiplex immediately began to

comply with the order entered against it33 Centiplex made an appearance in Rhorsquos case

against Sang in order to challenge the validity of the search engine order but the court

upheld the order34

12 In the same lawsuit Rho also sued the unknown source of the recorded voicemail

message as a ldquoJohn Doe35rdquo Rho subpoenaed Sang for the identity of that person Sang filed

a motion with the court to quash the subpoena asserting a privilege to hide the identity of

his source36 The court denied the motion to quash as under Mhuganian law the court does

recognize a qualified privilege not to reveal sources but only to ldquoprofessional journalistsrdquo

32 ibid

33 Compromis para1617

34 Ibid

35 Compromis para18

36 Ibid

-MEMORANDUM for theRESPONDENT-

but Sang was not a professional journalist as he did not disseminate the information to the

public for the gain of livelihood as the revenue goes to the CentiplexHowever the court did

grant a stay of the subpoena

2013 SEARCH PRIVACY ACT

13 On May 15 2013 Mhugan enacted the Search Privacy Act which makes it unlawful

for a search engine to sell information about a personrsquos search queries without that personrsquos

consent37

a) For purposes of this Act a ldquosalerdquo is defined to be a ldquotransfer in exchange for

anything of valuerdquo

b) Information is considered to be information ldquoabout a personrsquos search queriesrdquo if

individual search queries are associated with ldquoany identifier including without

limitation a name address phone number email address government identification

number date of birth or IP addressrdquo

c) The Act does not apply to non-sale transfers of such information nor does it apply

to any subsequent transfers of the same information after an initial transfer by the

search engine whether or not those subsequent transfers are sales

d) The Act contains explicit exceptions for disclosures to law enforcement agencies

pursuant to a warrant subpoena or court order and disclosures incident to the

search enginersquos ordinary course of business

e) The Act provides for compensatory or statutory damages at the plaintiffrsquos election

as well as punitive damages for a ldquowillful violationrdquo

f) The Act is scheduled to become effective on May 1 201438

37 Compromis para19

38 ibid

-MEMORANDUM for theRESPONDENT-

14 On May 20 2013 Centiplex sued in Mhugan to have the Search Privacy Act

declared invalid under the laws and Constitution of Mhugan39 But the court held the search

privacy act to be valid40

15 All of the rulings described above were appealed to the Mhugan Supreme Court the

highest appellate court in Mhugan and the Mhugan Supreme Court dismissed all of the

appeals41

16 Sang and Centiplex have challenged all of the following in the Universal Court of

Human Rights42

a) the damages imposed on Sang for disseminating the recorded voicemail

b) the subpoena to Sang to disclose the source of the recorded voicemail

c) the order against Centiplex requiring that webpages that link to the recorded

voicemail including Sangrsquos blog posts never appear on the first page of search

results

d) the validity of the 2013 Search Privacy Act43

39 Compromis para 20

40 Ibid

41 Compromis para21

42 Compromis para 22

43 Ibid

-MEMORANDUM for theRESPONDENT-

17 No law domestic or international restricts either Sangrsquos or Centiplexrsquos standing to

bring these challenges44 Both Sangrsquos and Centiplexrsquos positions have been rejected on the

merits in the domestic courts of Mhugan and all appeals or other legal remedies within the

Mhuganian court system have been exhausted45

STATEMENT OF JURISDICTION

CASE CONCERNING RIGHTS AND OBLIGATIONS UNDER THE UDHR

SANG AND CENTIPLEX Applicants

v

44 Compromis para 23

45 Ibid

-MEMORANDUM for theRESPONDENT-

THE REPUBLIC OF MHUGAN Respondent

ldquoSang and Centiplex (the Applicants) and the Republic of Mhugan (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 Mhuganian means the

Universal Freedom of Expression Court has jurisdiction in this matterrdquo

IN THE UNIVERSAL FREEDOM OF EXPRESSION COURT

THE RESPONDENT MOST HUMBLY AND RESPECTFULLY SUBMITS TO THE

JURISDICTION OF THIS HONrsquoBLE COURT

QUESTIONSPRESENTED

THE FOLLOWING QUESTIONS HAVE BEEN PRESENTED BEFORE THE COURT

FOR ITS DETERMINATION

1 WHETHER THE DAMAGES IMPOSED ON THE APPLICANT ARE CONSISTENT

WITH THE PROVISIONS OF THE UDHR

-MEMORANDUM for theRESPONDENT-

2 WHETHER THE REQUIREMENT TO DISCLOSE THE SOURCE OF THE

RECORDED VOICEMAIL IS CONSISTENT WITH THE PROVISIONS OF THE

UDHR

3 WHETHER THE SECTION OF THE WIRETAP ACT THAT PROVIDES FOR A

SPECIAL PROVISIONAL REMEDY IS CONSISTENT WITH THE UDHR

4 WHETHER THE PROVISIONS OF THE 2013 SEARCH PRIVACY ACT ARE

CONSISTENT WITH THE UDHR

SUMMARYOF ARGUMENTS

A The courts finding imposed damages of 400000 MHD on the Applicant First the

requirement does not infringe the right to freedom of expression of the Applicant Herein

firstly Respondent submits that the impugned requirement does not restrict the right to

freedom of expression and secondly it does not cause a chilling effect Second property

rights under Article 17 are not infringed because the Applicant cannot enjoy his right by

violating ones right under Article 12 The allegation emphasised by the Applicant does not

contribute to public debate as there are no facts substantiating the allegation Third the

-MEMORANDUM for theRESPONDENT-

Respondent possess a reasonable expectation of privacy under Article 12 which has been

violated after the dissemination of the unauthorised information took place In any event the

restriction is permissible under Article 29(2) of the UDHR It is prescribedby law under the

Wiretap Act The situation in Mhugan shows that the Wiretap Act is clearly in pursuit of the

legitimate aims of serves to protect an individualrsquos right from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR The restriction is necessary in a

democratic society as it corresponds to a pressing social need and is proportionate to the

legitimate aims

B The requirement by the court has mandated the Applicant to disclose the identity of

the source of the voicemail and it does not contravene the rights to freedom of expression

enshrined in Article 19 of the UDHR Herein firstly Article 19 does not include the right to

anonymity secondly it does not cause a chilling effect and finally the requirement does

not constitute prior restraint

Further the requirement does notcontravene the right to privacy guaranteed under Article 12

of the UDHR because there is no actual subjective expectation of privacy which is

objectively reasonable Finally theright to remedy enshrined in Article 8 of the UDHR has

not been violated because the Respondent has a right to effective remedy which is possible

only when the Applicant will disclose the name of the source of the information that

infiltrated the voicemailIn any event these measures are valid limitations under Article

29(2) of the UDHR Theysatisfy the three-tiered test of legality legitimacy and necessity

C The requirement by the Court mandated Centiplex to remove the impugned

information from the first page of search result First it does not contravene the right to

expression enshrined in Article 19 of the UDHR Herein firstly the restriction doesnt

impose filtering or prior restraint secondly it does not create a Chilling effect Second the

-MEMORANDUM for theRESPONDENT-

right to privacy guaranteed under Article 12 is violated as it has a superseding effect on

Applicants right guaranteed under Article 19 In any event these measures are valid

limitations under Article 29(2) of the UDHR They satisfy the three-tier test of legality

legitimacy and necessity

D The requirement under the 2013 Search Privacy Act is consistent with the UDHR

First the requirement does not contravene right to privacy enshrined in Article 12 of the

UDHRItexemplifies how in certain circumstances the right to privacy outweighs the right

to freedom of expression Second it does not contravene Article 19 as it complies with the

three-tier test under Article 29(2) The restriction is prescribed by law as it is made under the

authority of the SPA It is pursuant to the legitimate aim of protection of rights of others as

the Respondent possesses a reasonable expectation of privacy Further the restriction is

necessary in ademocratic society as the dissemination does not warrant to a debate of

general interest

ARGUMENTS

A THE DAMAGES IMPOSED ON THE APPLICANT ARE JUST FAIR AND

CONSISTENT WITH THE PROVISIONS OF THE UDHR

1 The courts finding imposed damages of 400000 MHD46 on the Applicant

Respondent submits that this requirement is consistent with the right to freedom of speech

and expression under Article 19 [I] right to property under Article 17 [II] and valid under

46 Compromis para16

-MEMORANDUM for theRESPONDENT-

Article 29(2) [III] Moreover the dissemination was privacy intrusive under Article 12

UDHR [IV]

I The requirement is not a restriction on Article 19 UDHR

2 Article 19 guarantees ldquothe right to freedom of opinion and expression hellip without

interferencehellipthrough any mediardquo47 Respondent submits that the impugned requirement

does not restrict the right to freedom of expression [a] and does not cause a chilling effect

[b]

a) The requirement does not restrict the freedom of expression

3 Notwithstanding the pressrsquo vital ldquowatchdogrdquo role48 journalists cannot be released

from their duty to obey the ordinary law on the basis that Article 19 of the UDHR affords

them protection49 In Stoll v Switzerland the ECtHR held that there is no lsquowholly

unrestricted freedom of expression even with respect to press reporting of matters of serious

public concernrsquo50 The Respondent emphasises the Courtrsquos sentiment that journalistic

ethics51 play a considerably important role lsquogiven the influence wielded by the media in

contemporary societyrsquo52 It is no excuse to say that Sangrsquos duty as a journalist compelled

47 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19 See also International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

48 Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government Ethics(The ANNALS of the American Academy of Political and Social Science1995 )

49Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

50Stoll (n 49) BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR 20 May 1999) 65

51 Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5 October 2013

52Stoll (n 49) 104

-MEMORANDUM for theRESPONDENT-

him to commit an unlawful act53 when in fact this duty could have been discharged through

legal and ethical means54

4 Moreover it is established that ldquonews broadcasting should be based on truthfulness

ensured by the appropriate means of verification and proof and impartiality in

presentation description and narrationrdquo55 Sang clearly did not follow these standards56

Having in mind that ldquoduties and responsibilities which accompany the exercise of the right

tofreedom of expression by media professionals assume special significance in situations

ofconflict and tensionrdquo57 it can be manifestly perceived that Rho had sent the voicemailonly

to let off some steam to his good friend Taur58 which proves prima faciethere was no such

situation prevailing and dissemination does not meet these standards

b) The impugned requirement does not cause a lsquoChilling effectrsquo

5 Ultimately the Respondent reiterates that there is no interference with the freedom

of the press59 Further the damages60 imposed upon Sang do not amount to a form of

censorship61 intended to discourage the press from expressing criticism62 Requirement to

53 Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt accessed 5 October 2013

54 Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013

55 Resolution 1003 (1993) on the ethics of journalism adopted by the Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

56 Compromis para13

57Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

58 Compromis para11

59Freedom of the Press lthttpwwwpuclorgfrom-archivesMediafreedom-presshtmgt accessed 9 October 210360 Compromis para 16

61 Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October 2013

62Stoll (n 49) 154

-MEMORANDUM for theRESPONDENT-

pay damages was merely to discourage journalist for adopting unlawful methods for

obtaining information63 protect right to privacy enshrined under Article 12 UDHR and

public order64 and is wholly proportionate in this instance The safeguard afforded by

freedom of speech in relation to journalistic reporting on issues of general interest is subject

to the journalistacting in good faith and in accordance with the ethics of journalism65

Regardless of the Applicantrsquos misguided beliefs and best intentions his profession is no

source of immunity or impunity66 the road to perdition is paved with bona-fide intentions

II The requirement does not restrict Article 17 UDHR

6 Sang had doubtlessly breached his lsquoduties and responsibilitiesrsquo67 the ethics of

journalism68 and did not act lsquoin good faithrsquo69Besides the information lsquodoes not bear on

matters of general importancersquo70 and its dissemination is an abuse of the pressrsquos ldquowatchdogrdquo

role71To enhance this contention reliance is placed upon three groundsFirst while earlier

63 Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-

codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

64 Public Order lthttpwwwusiporgguiding-principles-stabilization-and-reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October 2013

65Stoll (n 32) 103

66Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) International Court of Justice 14 February 2002

67The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

68BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20 May 1999)

69Pedersen (n 44)

70Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

71Warren(n 49)

-MEMORANDUM for theRESPONDENT-

decisions of the Strasbourg courts tend not to tolerate high damages awards72 none of them

involved the scale of character assassination like in this case73Second spousal abuse74 is a

serious allegation aimed at scandalising Rhorsquos reputation for negative publicity75 purposes

and third such an allegation does not contribute to public debate where there are no facts

substantiating the allegation76

7 Furthermore such an allegation is solely speculative and was coldly calculated to

inflict maximum damage to Rhorsquos reputation77 Rhorsquos loss must be seen in the context of

his negative publicity78 and its impact on his pecuniary loss arising from the protest79 In

addition to that the grief over loss of reputation and honour which was clearly compounded

by the tasteless spousal abuse allegations80 Rho has absolute right to ask for damages since

his right to privacy is in issue and since ldquothe possibility of taking an action under civil law

should be guaranteed to enable a victim to claim possible damages for invasion of

privacyrdquo81 Furthermore the damages are reasonable and does not violate right to enjoyment

of property of the Applicant

72Jersild v Denmark App no 159808 (ECHR 23 September 1994)

73Clarification 10

74Domestic Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt accessed 6 October 2013

75 What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October 2013

76 Compromis para12

77 Compromis para13

78 Clarification 10

79 Compromis para9

80Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June 2007)

81 Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary Assembly of Council of Europe 26 July 1998 Article 14(i)

-MEMORANDUM for theRESPONDENT-

III In any event the requirement is permissible under Article 29(2) UDHR

a) The requirement is prescribed by law

8 Imposing damages on Sang for breach of the Wiretap Act82 is a justified interference

with his freedom of expression The interference in question is validly provided by law and

serves to protect an individualrsquos right to protection from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR

b) The requirement is in pursuance of legitimate aims

9 The ECtHR in Handyside v United Kingdom83 acknowledged that lsquostate authorities

are in principle in a better position than the international judge to give an opinion on the

exact content of these requirements as well as on the necessity of a restriction of a

penaltyrsquo84 Whether a restriction is necessary in the circumstances is therefore an inquiry

based on the facts and circumstances prevailing in the country concerned which the national

authorities are in a better position to undertake85 For the foregoing reasons the requirement

is in pursuance of legitimate aims

c) The restriction is necessary in a democratic society

10 The thrust of the Mhugan courtrsquos reasoning in imposing damages on Sang was

directed at his dissemination of lsquounlawfully obtained materialrsquo86 ie Rhorsquos recorded

82 Compromis para14

83 App no 549372( ECHR 7 December 1976)

84Handyside(n 28) at [48] The Sunday Times (n 8) Joint Dissenting Opinion of Judges Wiarda Cremona Thor Vilhjalmsson Ryssdal Ganshof van der Meersch Sir Gerald Fitzmaurice Bindschedler-Robert Liesh and Matscher

85Case of Klass and Others v Germany App no 502971(EHRR 6 September 1978)

86 Compromis para16

-MEMORANDUM for theRESPONDENT-

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 2: Oxford Respondent

TABLEOFCONTENTS

LIST OF ABBREVIATION__________________________________________________

INDEX OF AUTHORITIES________________________________________________

STATEMENT OF RELEVANT FACTS _______________________________________

STATEMENT OF JURISDICTION __________________________________________

QUESTIONS PRESENTED__________________________________________________

SUMMARY OF ARGUMENTS_____________________________________________

ARGUMENTS_____________________________________________________________

A THE DAMAGES IMPOSED ON SANG ARE NOT CONSISTENT WITH THE

PROVISIONS OF UDHR__________________________________________________

I The damages restrict Article 19UDHR____________________________________

II The damages impose a restriction on Article 20 UDHR_______________________

III The damages impose a restriction on Article 17 UDHR_______________________

IV The damages are not permissible under Article 29 UDHR_____________________

V The dissemination does not violate the Wiretap Act and Article 12

UDHR________

VI Right to receive and disseminate information is protected under international

law___

B THE REQUIREMENT TO DISCLOSE THE SOURCE OF THE RECORDED

VOICEMAIL IS NOT CONSISTENT WITH THE PROVISIONS OF THE

UDHR_______________

I The article imposes a restriction on Article 19 UDHR_________________________

II The requirement indirectly affects the right of association under Article 20 UDHR___

-MEMORANDUM for theRESPONDENT-

III The requirement contravenes Article 12 UDHR______________________________

IV The requirement is not permissible under Article 29(2) UDHR__________________

C THE FINDING OF THE COURT THAT THE IMPUGNED INFORMATION

SHALL NOT APPEAR ON THE FIRST PAGE OF THE SEARCH RESULTS

OUGHT TO BE SET

ASIDE_________________________________________________________

I The requirement restricts scope of Article 19UDHR__________________________

II The requirement violates Article 20UDHR_________________________________

III The requirement contravenes Article 17 UDHR_____________________________

IV The requirement is impermissible under Article 29(2) UDHR__________________

D THE PROVSIONS OF THE 2013 SEARCH PRIVACY ACT ARE INCONSISTENT

WITH THE PROVISIONS OF THE UDHR__________________________________

I ROM cannot demand restriction on the disclosure of the search queries without

violating Article 19 of the UDHR________________________________________

II The requirement is impermissible under Article 29 (2) UDHR__________________

III Requirement restricts Article 8 UDHR____________________________________

-MEMORANDUM for theRESPONDENT-

LIST OF ABBREVIATIONS

para Paragraph

AfCHR African Convention on Human and Peoplesrsquo Rights

ACtHPR African Court of Human and Peoplesrsquo Rights

ACHR American Convention on Human Rights

AIR All India Reporter

App no Application Number

Art Article

cf Confer from

cl Clause

EC European Council

EU European Union

ECHR European Convention on Human Rights

ECtHR European Court of Human Rights

ECmHr European Commission of Human Rights

EHRR European Human Rights Reports

-MEMORANDUM for theRESPONDENT-

SPA Search Privacy Act

HRC Human Rights Committee

IACHR Inter American Court of Human Rights

ICCPR International Covenant on Civil and Political Rights

Prin Principle

ROM Republic of Mhugan

s Section

UDHR Universal Declaration of Human Rights

-MEMORANDUM for theRESPONDENT-

LIST OF AUTHORITIES

ARTICLES AND JOURNALS

Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government

Ethics(The ANNALS of the American Academy of Political and Social

Science1995 )

Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5

October 2013

Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt

accessed 5 October 2013

Law Media Definition of Media Law And Ethics lt httpmedia-

lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed

5 October 2013

Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October

2013

Manner of collection of personal information (principle four) lt

httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-

of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

-MEMORANDUM for theRESPONDENT-

Public Orderlthttpwwwusiporgguiding-principles-stabilization-and-

reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October

2013

Domestic

Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt

accessed 6 October 2013

What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-

publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October

2013

Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University

Press Cambridge 1992) 115

Electronic Privacy Information Centre lsquoData Retentionrsquolt

httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October

2013

Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

Susan Freiwald lsquoUncertain Privacy Communication Attributes After the

Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

Organisation for Economic Co-operation and Development lsquoOECD

Guidelines on the Protection of Privacy and Transborder Flows of Personal

Datarsquo

lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1

_ 1_100htmlgt accessed 3 October 2013

-MEMORANDUM for theRESPONDENT-

Electronic Privacy Information System lsquoRecords Computers and the Rights

of Citizens Report of the Secretarys Advisory Committee on Automated

Personal Data Systems July 1973rsquo

lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

Reasonable Expectation of Privacylthttplegal-

dictionarythefreedictionarycomReasonable+expectation+of+privacygt

accessed 9 October 2013

Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo

(1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData

Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56

Stanford Law Review 191

Legal protection for Journalistic Sourceslt

httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5

October 2013

Mark duezersquo What is journalismProfessional identity and ideology of

journalists reconsidered lthttpjousagepubcomcontent64442abstractgt

accessed 9 October 2013

BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt

httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16

September 2013

Privacy and freedom from state

intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-

-MEMORANDUM for theRESPONDENT-

from-state-intrusiongt accessed 9 October 2013

Freedom from suspicion Principles to protect freedom of expression and

privacy against mass surveillancelt

httpwwwarticle19orgresourcesphpresource37186enfreedom-from-

suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-

mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013

Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013

The substance of the right to effective judicial protection against violation of

social rights lt

httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt

accessed 8 October 2013

African Commission on Human and Peoplesrsquo Rights lsquoResolution on the

Adoption of the Declaration of Principles on Freedom of Expression in

Africa (2002)rsquo Res 62(XXXII)02 Principle XV

CASES OF THE AFRICAN COURT OF HUMAN AND PEOPLESrsquo

RIGHTS

Referred to in

Media Rights Agenda and Others v Nigeria Commnos 2 23

-MEMORANDUM for theRESPONDENT-

10593 1289413094 and 15296 (1998) (ACHPR)

Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

CASES OF THE EUROPEAN COURT OF HUMAN RIGHTS

Referred to in

Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR

20 May 1999) 65

Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20

May 1999)

Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

Jersild v Denmark App no 159808 (ECHR 23 September 1994)

Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June

2007)

Handyside v United Kingdom App no 549372( ECHR 7 December 1976)

-MEMORANDUM for theRESPONDENT-

Klass and Others v Germany App no 502971(EHRR 6 September 1978)

Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November

2004)

KU v Finland App no 287202 (ECtHR 2 March 2009

Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008)

Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

Worm v Austria (1997) 25 EHRR 454

Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

Silver and Others v United Kingdom Application no 594772 (25

March 1983)

The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November

1991)

Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

-MEMORANDUM for theRESPONDENT-

Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

Kruslin v France App no 1180185(ECHR 24 April 1990)

Huvig v France App No 1110584( ECHR 24 April 1990)

Burghartz v Switzerland (1994) 18 EHRR 101

Von Hannover v Germany (2005) 40 EHRR 1

Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002)

Nebraska Press Association v Stuart427 US 539 559 (1976)

PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001)

Peck v United Kingdom (2003) 36 EHRR 41

New York Times Co v Sullivan 376 US 254 (1964)

Lingens v Austria App no 981582 (ECtHR 8 July 1986)

Friedl v Austria 1522589 (ECHR 31 January 1995)

PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001)

Peck v United Kingdom (2003) 36 EHRR 41

Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR

18 January 2011)

-MEMORANDUM for theRESPONDENT-

X and Y v Netherlands App no 897880(ECHR 26 March 1985)

ETK v News Group Newspapers [2011] EWCA Civ 439

Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no

5422400

(ECtHR 12 December 2000)

Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902

(ECtHR

13 May 2003)

Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006)

Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR

28 March 1990)

HRH Princess of Wales v MGN Newspapers App no1306997 (ECtHR 11

December 2003)

Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July

2009)

-MEMORANDUM for theRESPONDENT-

Klass and Others v Germany (App no 502971)Application

No 502971(ECHR 6 September1978)

Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25

February 1992)

Plon(socieacuteteacute) v FranceApp no 5814800(ECHR 18 May 2004)

Worm v Austria (1997) 25 EHRR 454

X and Y v Netherlands App no897880(ECHR 26 March 1985)

Funke v France App no 1082884(ECHR 25 February 1993) Keegan v

Ireland (1994) 18 EHRR 342

Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

UNITED STATES

Referred to in

McIntyre v Ohio Elections Commission 514 US 334 (1995)

Buckley v Valeo424 US 1 (1976)

Branzburg v Hayes 408 US 665

-MEMORANDUM for theRESPONDENT-

OShea v Littleton 414 US 488 (1974)

Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

Laird v Tatum 408 US 1 (1972)

Meese v Keene 481 US 465 (1987)

Niemotko v Maryland 340 US 268 (1951)

Shuttleworth v Birmingham 394 US 147 (1969)

Frisby v Schultz 487 US 474 (1988)

Katz v United States 389 US 347 (1967)

Acrara v Cloud Books Inc478 US 697 (1986)

Alexander v US 509 US 544 (1993)

Gertz v Welch 418 US 323 (1974)

Time Inc v Firestone 424 US 448 (1976)

Bartnicki v Vopper532 US 514 (2001)

Hutchinson v Proxmire443 US 111 (1979)

Wolston v Readerrsquos Digest Association Inc443 US 157 (1979)

Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981)

-MEMORANDUM for theRESPONDENT-

Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987)

Cox v New Hampshire 312 US 569 (1941)

Freedman v Maryland 380 US 51 (1965)

Madsen v Womenrsquos Health CenterInc et al 512 US 753 (1994)

United States v OBrien 391 US 367 (1968)

Turner Broadcasting System Inc v FCC 512 US 622 (1994)

Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton

536 US 150 (2002)

Ward v Rock Against Racism 491 US 781 (1989)

Galella v Onassis 487 F 2d 986 (1973)

Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

Bartnicki v Vopper532 US 514 (2001)

R v Oakes [1986] 1 SCR 103

New York Times Co v United States 403 US 713

Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186

(1984)

-MEMORANDUM for theRESPONDENT-

HUMAN RIGHTS COMMITTEE

Referred to in

Aduayom Diasso and Dobou v Togo Communications Nos 4221990

4231990

and 4241990 UN Doc CCPRC51D4221990 4231990 and 4241990

(1996)

ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN

Doc CCPRC85D11802003 (2006) (UN Human Rights Committee)

ENGLISH CASES

Referred to

in

A v B and Anr[2002] EWCA Civ 337 (UK)

McKennitt v Ash [2007] 3 WLR 194

Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK)

D v L [2004] EMLR 1 (UK)

Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK)

Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK)

-MEMORANDUM for theRESPONDENT-

R v Broadcasting Standards Commission ex parte British Broadcasting

Corporation (Liberty intervening) [2000] 3 All ER 989 (UK)

R v Loveridge[2001] EWCA Crim 973 (UK)

INDIAN CASES

Referred to in

Zimbabwe

Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231

REGIONAL AND INTERNATIONAL INSTRUMENTS

African Charter on Human and Peoplesrsquo Rights (adopted 27 June

1981entered into force 21 October 1986) (1982) 21 ILM 58

American Convention on Human Rights (adopted 22 November

1969entered into force 18 July 1978)

European Convention on Human Rights (adopted 4 November 1950

entered into force 3 September 1953)

International Covenant on Civil and Political Rights (adopted 16

-MEMORANDUM for theRESPONDENT-

December 1966 entered into force 23 March 1976) 999 UNTS 171

Universal Declaration of Human Rights (adopted 10 December 1948

UNGA Res 217 A(III)

CONSTITUTION

The Constitution of United States of America 1788

The Constitution of Argentina 1853

The Constitution of Belgium 1831

The Constitution of Brazil 1988

The Constitution Act of Finland 2000

The Constitution of India 1950

STATUTES

MISCELLANEOUS

-MEMORANDUM for theRESPONDENT-

Resolution 1003 (1993) on the ethics of journalism adopted by the

Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

Case Concerning the Arrest Warrant of 11 April 2000 (Democratic

Republic of the Congo v Belgium) (Merits) International Court of Justice

14 February 2002

21

Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary

Assembly of Council of Europe 26 July 1998 Article 14(i)

25

STATEMENT OF RELEVANT FACTS

-MEMORANDUM for theRESPONDENT-

ECONOMIC SCENARIO IN MHUGAN

1 The respondent country Republic of Mhugan is a country which obtained

independence in 1959 and since then it has had a parliamentary form of government1 Its

economy has grown rapidly since the late twentieth century fueled by a combination of

information technology industries manufacturing and financial services2

SOCIAL STATUS OF RHO

2 BansitSangnont better known by his stage name Rho is a pop music singer-

songwriter in Mhugan3 Rho after his music video for his song ldquoPokeacutePokeacuterdquo in 2011 became

very successful and was known throughout the world In early 2013 rumors began to

surface that Rho has been physically andor emotionally abusive to his wife an allegation

that Rho has vehemently denied4

COMPANIES PROVIDING INFORMATION ON SEARCH QUERIES

3 Centiplex Corporation based in Mhugan is the leading Internet services company in

Mhugan5 It runs an Internet search engine More than 80 of all search queries in Mhugan

are conducted through Centiplex and the remaining being conducted through Google6

Dexian is a global information services company based in the United States7 Its core

business is collecting aggregating analyzing and disseminating information relating to

1 Compromis para 1

2 Ibid

3 Compromis para 2

4 Compromis para 3

5 Compromis para4

6 Ibid

7 Compromis para 5

-MEMORANDUM for theRESPONDENT-

individuals8 Dexian claims to have records for almost 500 million people although those

records vary widely in their scope completeness and correctness9 The particular methods

that Dexian uses to combine sources and build individual records are not publicly known

and Dexian claims such information to be a trade secret10

4 Centiplex is a Dexian client and both buys and sells data to Dexian11 Prior to the

2013 Search Privacy Act described below no law or regulation in Mhugan restricted a

search enginersquos ability to collect disclose or use information12

ALLEGATIONS IMPOSED ON THON SANG

5 Thon Sang maintains an active blog on the Centiplex platform in Mhugan13 The ad

revenue goes to the centiplex and is not shared with the bloggers themselves14Sang is

ldquocelebrity-obsessedrdquo and his news is dedicated to Mhuganian celebrities15Sang has blogged

about the rumors of Rho abusing his wife writing that ldquoif true people should boycott Rhorsquos

music in protestrdquo16 On May 1 2013 Sang posted a voicemail that Rho left for his friend

8 Ibid

9 Ibid

10 Ibid

11 Compromis para 6

12 Ibid

13 Compromis para 7

14 Ibid

15 Compromis para 8

16 Ibid

-MEMORANDUM for theRESPONDENT-

TaurAklamit17 In the voicemail someone identifying himself as ldquoBansitrdquo said that he was

ldquofurious with my wife for not being more obedientrdquo and that ldquoI need to give her a good

smacking to show her whorsquos in chargerdquo18 Sang wrote in his post that he got this recording

from someone who tried to get into Aklamitrsquos voicemail Sang also wrote ldquoso the rumors are

true Boycott Rho and donrsquot even think about dancing the PokeacutePokeacuterdquo 19

6 The next day Sang posted again to gain more popularity- ldquoMore evidence this time

from Rhorsquos web searches which include lsquohow to control your wifersquo and lsquowhipping

techniquesrsquordquo Sang was very anxious to acquire information regarding Rho and therefore he

purchased Rhorsquos profile from Dexian for 20000 MHD which is approximately 002 Euros

7 On May 4 Rho held a press conference with his wife at his side where he stated

that he left the recorded voicemail for his friend TaurAlkamit and he would never even

dream of striking his wife He called Sang and whoever had recorded the voicemail

ldquovicious unethical and unprofessional rumor mongersrdquo who were ldquocriminals who deserve

to be punishedrdquo while his wife was busy listening to him and did not utter a word at the

conference On May 5 Sang again posted a reply stating that he was disgruntled by Rhorsquos

explanations

8 Sang clarified that the source of the voicemail had explained to him how he or she

had come across the message20 The source had entered Aklamitrsquos number by mistake

Aklamit and the source apparently shared the same password because neither had ever 17 Compromis para 9

18 Ibid

19 Ibid

20 Compromis para13

-MEMORANDUM for theRESPONDENT-

changed it from the default password for the voicemail system ldquo123456rdquo Before the source

had realized the mistake heshe clicked on the first message and heard it21 Suspecting that

the ldquoBansitrdquo on the message was in fact Rho the source then realized that this mailbox was

not hishers The source downloaded the copy of the message and sent the copy to Sang but

asking him not to reveal hisher identity22

PROVISIONS OF WIRETAP ACT

9 Mhuganian law makes it illegal under the Wiretap Act to ldquointentionally intercept or

obtain unauthorized access to any telephone or electronic communications whether in

transit or in storage23rdquo The Wiretap Act further makes it illegal for ldquoany person to

disseminate the contents of a telephone or electronic communications that the person knows

to have been unlawfully intercepted or obtained under this Act24rdquo The Wiretap Act provides

for both civil and criminal penalties Among the civil penalties are statutory damages up to

1000000 MHD The portion of the Wiretap Act described here contains an exception for

anyone acting in an official government capacity25

The Wiretap Act defines ndash

a) ldquodirectly accessedrdquo to include both (1) a link that leads directly to the material and

(2) any link that from the surrounding context reasonably indicates that it will lead

21 Ibid

22 Ibid

23 Compromis para14

24 Ibid

25 Ibid

-MEMORANDUM for theRESPONDENT-

to the prohibited material and does in fact lead to such material regardless of how

many links it takes to reach the prohibited material26

b) A search engine can meet its obligations under such an order by de-indexing the

relevant web pages but such de-indexing is not required so long as the relevant web

pages do not appear on the first page of search results27

c) The order remains in force unless and until the court rules against the plaintiff on

the Wiretap Act claim (or an appellate court rules against the plaintiff on this claim)

or the case is otherwise dismissed If the plaintiff prevails on the claim and

continues to prevail through any appeals the order effectively becomes permanent28

d) The Act provides for both civil and criminal penalties for a violation of such a

search engine order with statutory damages of up to 10000 MHD per day of

violation for a negligent violation and up to 1000000 MHD per day for an

intentional violation Criminal penalties are only available for an intentional

violation29

10 On May 8 2013 Rho sued Sang under the Wiretap Act for knowingly disseminating

the contents of unlawfully obtained communications30 Rho immediately applied for a search

engine order under the Act against Centiplex which the court granted31 The court

26 Compromis para15

27 Ibid

28 Ibid

29 Ibid

30 Compromis para16

31 ibid

-MEMORANDUM for theRESPONDENT-

ultimately ruled that Sang had violated the Wiretap Act and awarded statutory damages to

Rho of 400000 MHD In so ruling the court found under Mhuganian law that while the

sourcersquos initial hearing of the voicemail message may have been accidental the subsequent

downloading of the message to hisher computer was intentional and unauthorized under the

Wiretap Act and that furthermore because Sang had recounted on his blog all of the

relevant facts about the circumstances under which the source had acquired the voicemail

message Sang had the knowledge required to be liable under the Act32

11 Centiplex was given the search engine order by the court for disseminating the

contents of the recorded voicemail under the wiretap act and centiplex immediately began to

comply with the order entered against it33 Centiplex made an appearance in Rhorsquos case

against Sang in order to challenge the validity of the search engine order but the court

upheld the order34

12 In the same lawsuit Rho also sued the unknown source of the recorded voicemail

message as a ldquoJohn Doe35rdquo Rho subpoenaed Sang for the identity of that person Sang filed

a motion with the court to quash the subpoena asserting a privilege to hide the identity of

his source36 The court denied the motion to quash as under Mhuganian law the court does

recognize a qualified privilege not to reveal sources but only to ldquoprofessional journalistsrdquo

32 ibid

33 Compromis para1617

34 Ibid

35 Compromis para18

36 Ibid

-MEMORANDUM for theRESPONDENT-

but Sang was not a professional journalist as he did not disseminate the information to the

public for the gain of livelihood as the revenue goes to the CentiplexHowever the court did

grant a stay of the subpoena

2013 SEARCH PRIVACY ACT

13 On May 15 2013 Mhugan enacted the Search Privacy Act which makes it unlawful

for a search engine to sell information about a personrsquos search queries without that personrsquos

consent37

a) For purposes of this Act a ldquosalerdquo is defined to be a ldquotransfer in exchange for

anything of valuerdquo

b) Information is considered to be information ldquoabout a personrsquos search queriesrdquo if

individual search queries are associated with ldquoany identifier including without

limitation a name address phone number email address government identification

number date of birth or IP addressrdquo

c) The Act does not apply to non-sale transfers of such information nor does it apply

to any subsequent transfers of the same information after an initial transfer by the

search engine whether or not those subsequent transfers are sales

d) The Act contains explicit exceptions for disclosures to law enforcement agencies

pursuant to a warrant subpoena or court order and disclosures incident to the

search enginersquos ordinary course of business

e) The Act provides for compensatory or statutory damages at the plaintiffrsquos election

as well as punitive damages for a ldquowillful violationrdquo

f) The Act is scheduled to become effective on May 1 201438

37 Compromis para19

38 ibid

-MEMORANDUM for theRESPONDENT-

14 On May 20 2013 Centiplex sued in Mhugan to have the Search Privacy Act

declared invalid under the laws and Constitution of Mhugan39 But the court held the search

privacy act to be valid40

15 All of the rulings described above were appealed to the Mhugan Supreme Court the

highest appellate court in Mhugan and the Mhugan Supreme Court dismissed all of the

appeals41

16 Sang and Centiplex have challenged all of the following in the Universal Court of

Human Rights42

a) the damages imposed on Sang for disseminating the recorded voicemail

b) the subpoena to Sang to disclose the source of the recorded voicemail

c) the order against Centiplex requiring that webpages that link to the recorded

voicemail including Sangrsquos blog posts never appear on the first page of search

results

d) the validity of the 2013 Search Privacy Act43

39 Compromis para 20

40 Ibid

41 Compromis para21

42 Compromis para 22

43 Ibid

-MEMORANDUM for theRESPONDENT-

17 No law domestic or international restricts either Sangrsquos or Centiplexrsquos standing to

bring these challenges44 Both Sangrsquos and Centiplexrsquos positions have been rejected on the

merits in the domestic courts of Mhugan and all appeals or other legal remedies within the

Mhuganian court system have been exhausted45

STATEMENT OF JURISDICTION

CASE CONCERNING RIGHTS AND OBLIGATIONS UNDER THE UDHR

SANG AND CENTIPLEX Applicants

v

44 Compromis para 23

45 Ibid

-MEMORANDUM for theRESPONDENT-

THE REPUBLIC OF MHUGAN Respondent

ldquoSang and Centiplex (the Applicants) and the Republic of Mhugan (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 Mhuganian means the

Universal Freedom of Expression Court has jurisdiction in this matterrdquo

IN THE UNIVERSAL FREEDOM OF EXPRESSION COURT

THE RESPONDENT MOST HUMBLY AND RESPECTFULLY SUBMITS TO THE

JURISDICTION OF THIS HONrsquoBLE COURT

QUESTIONSPRESENTED

THE FOLLOWING QUESTIONS HAVE BEEN PRESENTED BEFORE THE COURT

FOR ITS DETERMINATION

1 WHETHER THE DAMAGES IMPOSED ON THE APPLICANT ARE CONSISTENT

WITH THE PROVISIONS OF THE UDHR

-MEMORANDUM for theRESPONDENT-

2 WHETHER THE REQUIREMENT TO DISCLOSE THE SOURCE OF THE

RECORDED VOICEMAIL IS CONSISTENT WITH THE PROVISIONS OF THE

UDHR

3 WHETHER THE SECTION OF THE WIRETAP ACT THAT PROVIDES FOR A

SPECIAL PROVISIONAL REMEDY IS CONSISTENT WITH THE UDHR

4 WHETHER THE PROVISIONS OF THE 2013 SEARCH PRIVACY ACT ARE

CONSISTENT WITH THE UDHR

SUMMARYOF ARGUMENTS

A The courts finding imposed damages of 400000 MHD on the Applicant First the

requirement does not infringe the right to freedom of expression of the Applicant Herein

firstly Respondent submits that the impugned requirement does not restrict the right to

freedom of expression and secondly it does not cause a chilling effect Second property

rights under Article 17 are not infringed because the Applicant cannot enjoy his right by

violating ones right under Article 12 The allegation emphasised by the Applicant does not

contribute to public debate as there are no facts substantiating the allegation Third the

-MEMORANDUM for theRESPONDENT-

Respondent possess a reasonable expectation of privacy under Article 12 which has been

violated after the dissemination of the unauthorised information took place In any event the

restriction is permissible under Article 29(2) of the UDHR It is prescribedby law under the

Wiretap Act The situation in Mhugan shows that the Wiretap Act is clearly in pursuit of the

legitimate aims of serves to protect an individualrsquos right from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR The restriction is necessary in a

democratic society as it corresponds to a pressing social need and is proportionate to the

legitimate aims

B The requirement by the court has mandated the Applicant to disclose the identity of

the source of the voicemail and it does not contravene the rights to freedom of expression

enshrined in Article 19 of the UDHR Herein firstly Article 19 does not include the right to

anonymity secondly it does not cause a chilling effect and finally the requirement does

not constitute prior restraint

Further the requirement does notcontravene the right to privacy guaranteed under Article 12

of the UDHR because there is no actual subjective expectation of privacy which is

objectively reasonable Finally theright to remedy enshrined in Article 8 of the UDHR has

not been violated because the Respondent has a right to effective remedy which is possible

only when the Applicant will disclose the name of the source of the information that

infiltrated the voicemailIn any event these measures are valid limitations under Article

29(2) of the UDHR Theysatisfy the three-tiered test of legality legitimacy and necessity

C The requirement by the Court mandated Centiplex to remove the impugned

information from the first page of search result First it does not contravene the right to

expression enshrined in Article 19 of the UDHR Herein firstly the restriction doesnt

impose filtering or prior restraint secondly it does not create a Chilling effect Second the

-MEMORANDUM for theRESPONDENT-

right to privacy guaranteed under Article 12 is violated as it has a superseding effect on

Applicants right guaranteed under Article 19 In any event these measures are valid

limitations under Article 29(2) of the UDHR They satisfy the three-tier test of legality

legitimacy and necessity

D The requirement under the 2013 Search Privacy Act is consistent with the UDHR

First the requirement does not contravene right to privacy enshrined in Article 12 of the

UDHRItexemplifies how in certain circumstances the right to privacy outweighs the right

to freedom of expression Second it does not contravene Article 19 as it complies with the

three-tier test under Article 29(2) The restriction is prescribed by law as it is made under the

authority of the SPA It is pursuant to the legitimate aim of protection of rights of others as

the Respondent possesses a reasonable expectation of privacy Further the restriction is

necessary in ademocratic society as the dissemination does not warrant to a debate of

general interest

ARGUMENTS

A THE DAMAGES IMPOSED ON THE APPLICANT ARE JUST FAIR AND

CONSISTENT WITH THE PROVISIONS OF THE UDHR

1 The courts finding imposed damages of 400000 MHD46 on the Applicant

Respondent submits that this requirement is consistent with the right to freedom of speech

and expression under Article 19 [I] right to property under Article 17 [II] and valid under

46 Compromis para16

-MEMORANDUM for theRESPONDENT-

Article 29(2) [III] Moreover the dissemination was privacy intrusive under Article 12

UDHR [IV]

I The requirement is not a restriction on Article 19 UDHR

2 Article 19 guarantees ldquothe right to freedom of opinion and expression hellip without

interferencehellipthrough any mediardquo47 Respondent submits that the impugned requirement

does not restrict the right to freedom of expression [a] and does not cause a chilling effect

[b]

a) The requirement does not restrict the freedom of expression

3 Notwithstanding the pressrsquo vital ldquowatchdogrdquo role48 journalists cannot be released

from their duty to obey the ordinary law on the basis that Article 19 of the UDHR affords

them protection49 In Stoll v Switzerland the ECtHR held that there is no lsquowholly

unrestricted freedom of expression even with respect to press reporting of matters of serious

public concernrsquo50 The Respondent emphasises the Courtrsquos sentiment that journalistic

ethics51 play a considerably important role lsquogiven the influence wielded by the media in

contemporary societyrsquo52 It is no excuse to say that Sangrsquos duty as a journalist compelled

47 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19 See also International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

48 Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government Ethics(The ANNALS of the American Academy of Political and Social Science1995 )

49Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

50Stoll (n 49) BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR 20 May 1999) 65

51 Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5 October 2013

52Stoll (n 49) 104

-MEMORANDUM for theRESPONDENT-

him to commit an unlawful act53 when in fact this duty could have been discharged through

legal and ethical means54

4 Moreover it is established that ldquonews broadcasting should be based on truthfulness

ensured by the appropriate means of verification and proof and impartiality in

presentation description and narrationrdquo55 Sang clearly did not follow these standards56

Having in mind that ldquoduties and responsibilities which accompany the exercise of the right

tofreedom of expression by media professionals assume special significance in situations

ofconflict and tensionrdquo57 it can be manifestly perceived that Rho had sent the voicemailonly

to let off some steam to his good friend Taur58 which proves prima faciethere was no such

situation prevailing and dissemination does not meet these standards

b) The impugned requirement does not cause a lsquoChilling effectrsquo

5 Ultimately the Respondent reiterates that there is no interference with the freedom

of the press59 Further the damages60 imposed upon Sang do not amount to a form of

censorship61 intended to discourage the press from expressing criticism62 Requirement to

53 Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt accessed 5 October 2013

54 Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013

55 Resolution 1003 (1993) on the ethics of journalism adopted by the Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

56 Compromis para13

57Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

58 Compromis para11

59Freedom of the Press lthttpwwwpuclorgfrom-archivesMediafreedom-presshtmgt accessed 9 October 210360 Compromis para 16

61 Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October 2013

62Stoll (n 49) 154

-MEMORANDUM for theRESPONDENT-

pay damages was merely to discourage journalist for adopting unlawful methods for

obtaining information63 protect right to privacy enshrined under Article 12 UDHR and

public order64 and is wholly proportionate in this instance The safeguard afforded by

freedom of speech in relation to journalistic reporting on issues of general interest is subject

to the journalistacting in good faith and in accordance with the ethics of journalism65

Regardless of the Applicantrsquos misguided beliefs and best intentions his profession is no

source of immunity or impunity66 the road to perdition is paved with bona-fide intentions

II The requirement does not restrict Article 17 UDHR

6 Sang had doubtlessly breached his lsquoduties and responsibilitiesrsquo67 the ethics of

journalism68 and did not act lsquoin good faithrsquo69Besides the information lsquodoes not bear on

matters of general importancersquo70 and its dissemination is an abuse of the pressrsquos ldquowatchdogrdquo

role71To enhance this contention reliance is placed upon three groundsFirst while earlier

63 Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-

codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

64 Public Order lthttpwwwusiporgguiding-principles-stabilization-and-reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October 2013

65Stoll (n 32) 103

66Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) International Court of Justice 14 February 2002

67The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

68BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20 May 1999)

69Pedersen (n 44)

70Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

71Warren(n 49)

-MEMORANDUM for theRESPONDENT-

decisions of the Strasbourg courts tend not to tolerate high damages awards72 none of them

involved the scale of character assassination like in this case73Second spousal abuse74 is a

serious allegation aimed at scandalising Rhorsquos reputation for negative publicity75 purposes

and third such an allegation does not contribute to public debate where there are no facts

substantiating the allegation76

7 Furthermore such an allegation is solely speculative and was coldly calculated to

inflict maximum damage to Rhorsquos reputation77 Rhorsquos loss must be seen in the context of

his negative publicity78 and its impact on his pecuniary loss arising from the protest79 In

addition to that the grief over loss of reputation and honour which was clearly compounded

by the tasteless spousal abuse allegations80 Rho has absolute right to ask for damages since

his right to privacy is in issue and since ldquothe possibility of taking an action under civil law

should be guaranteed to enable a victim to claim possible damages for invasion of

privacyrdquo81 Furthermore the damages are reasonable and does not violate right to enjoyment

of property of the Applicant

72Jersild v Denmark App no 159808 (ECHR 23 September 1994)

73Clarification 10

74Domestic Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt accessed 6 October 2013

75 What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October 2013

76 Compromis para12

77 Compromis para13

78 Clarification 10

79 Compromis para9

80Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June 2007)

81 Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary Assembly of Council of Europe 26 July 1998 Article 14(i)

-MEMORANDUM for theRESPONDENT-

III In any event the requirement is permissible under Article 29(2) UDHR

a) The requirement is prescribed by law

8 Imposing damages on Sang for breach of the Wiretap Act82 is a justified interference

with his freedom of expression The interference in question is validly provided by law and

serves to protect an individualrsquos right to protection from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR

b) The requirement is in pursuance of legitimate aims

9 The ECtHR in Handyside v United Kingdom83 acknowledged that lsquostate authorities

are in principle in a better position than the international judge to give an opinion on the

exact content of these requirements as well as on the necessity of a restriction of a

penaltyrsquo84 Whether a restriction is necessary in the circumstances is therefore an inquiry

based on the facts and circumstances prevailing in the country concerned which the national

authorities are in a better position to undertake85 For the foregoing reasons the requirement

is in pursuance of legitimate aims

c) The restriction is necessary in a democratic society

10 The thrust of the Mhugan courtrsquos reasoning in imposing damages on Sang was

directed at his dissemination of lsquounlawfully obtained materialrsquo86 ie Rhorsquos recorded

82 Compromis para14

83 App no 549372( ECHR 7 December 1976)

84Handyside(n 28) at [48] The Sunday Times (n 8) Joint Dissenting Opinion of Judges Wiarda Cremona Thor Vilhjalmsson Ryssdal Ganshof van der Meersch Sir Gerald Fitzmaurice Bindschedler-Robert Liesh and Matscher

85Case of Klass and Others v Germany App no 502971(EHRR 6 September 1978)

86 Compromis para16

-MEMORANDUM for theRESPONDENT-

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 3: Oxford Respondent

III The requirement contravenes Article 12 UDHR______________________________

IV The requirement is not permissible under Article 29(2) UDHR__________________

C THE FINDING OF THE COURT THAT THE IMPUGNED INFORMATION

SHALL NOT APPEAR ON THE FIRST PAGE OF THE SEARCH RESULTS

OUGHT TO BE SET

ASIDE_________________________________________________________

I The requirement restricts scope of Article 19UDHR__________________________

II The requirement violates Article 20UDHR_________________________________

III The requirement contravenes Article 17 UDHR_____________________________

IV The requirement is impermissible under Article 29(2) UDHR__________________

D THE PROVSIONS OF THE 2013 SEARCH PRIVACY ACT ARE INCONSISTENT

WITH THE PROVISIONS OF THE UDHR__________________________________

I ROM cannot demand restriction on the disclosure of the search queries without

violating Article 19 of the UDHR________________________________________

II The requirement is impermissible under Article 29 (2) UDHR__________________

III Requirement restricts Article 8 UDHR____________________________________

-MEMORANDUM for theRESPONDENT-

LIST OF ABBREVIATIONS

para Paragraph

AfCHR African Convention on Human and Peoplesrsquo Rights

ACtHPR African Court of Human and Peoplesrsquo Rights

ACHR American Convention on Human Rights

AIR All India Reporter

App no Application Number

Art Article

cf Confer from

cl Clause

EC European Council

EU European Union

ECHR European Convention on Human Rights

ECtHR European Court of Human Rights

ECmHr European Commission of Human Rights

EHRR European Human Rights Reports

-MEMORANDUM for theRESPONDENT-

SPA Search Privacy Act

HRC Human Rights Committee

IACHR Inter American Court of Human Rights

ICCPR International Covenant on Civil and Political Rights

Prin Principle

ROM Republic of Mhugan

s Section

UDHR Universal Declaration of Human Rights

-MEMORANDUM for theRESPONDENT-

LIST OF AUTHORITIES

ARTICLES AND JOURNALS

Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government

Ethics(The ANNALS of the American Academy of Political and Social

Science1995 )

Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5

October 2013

Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt

accessed 5 October 2013

Law Media Definition of Media Law And Ethics lt httpmedia-

lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed

5 October 2013

Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October

2013

Manner of collection of personal information (principle four) lt

httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-

of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

-MEMORANDUM for theRESPONDENT-

Public Orderlthttpwwwusiporgguiding-principles-stabilization-and-

reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October

2013

Domestic

Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt

accessed 6 October 2013

What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-

publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October

2013

Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University

Press Cambridge 1992) 115

Electronic Privacy Information Centre lsquoData Retentionrsquolt

httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October

2013

Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

Susan Freiwald lsquoUncertain Privacy Communication Attributes After the

Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

Organisation for Economic Co-operation and Development lsquoOECD

Guidelines on the Protection of Privacy and Transborder Flows of Personal

Datarsquo

lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1

_ 1_100htmlgt accessed 3 October 2013

-MEMORANDUM for theRESPONDENT-

Electronic Privacy Information System lsquoRecords Computers and the Rights

of Citizens Report of the Secretarys Advisory Committee on Automated

Personal Data Systems July 1973rsquo

lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

Reasonable Expectation of Privacylthttplegal-

dictionarythefreedictionarycomReasonable+expectation+of+privacygt

accessed 9 October 2013

Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo

(1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData

Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56

Stanford Law Review 191

Legal protection for Journalistic Sourceslt

httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5

October 2013

Mark duezersquo What is journalismProfessional identity and ideology of

journalists reconsidered lthttpjousagepubcomcontent64442abstractgt

accessed 9 October 2013

BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt

httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16

September 2013

Privacy and freedom from state

intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-

-MEMORANDUM for theRESPONDENT-

from-state-intrusiongt accessed 9 October 2013

Freedom from suspicion Principles to protect freedom of expression and

privacy against mass surveillancelt

httpwwwarticle19orgresourcesphpresource37186enfreedom-from-

suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-

mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013

Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013

The substance of the right to effective judicial protection against violation of

social rights lt

httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt

accessed 8 October 2013

African Commission on Human and Peoplesrsquo Rights lsquoResolution on the

Adoption of the Declaration of Principles on Freedom of Expression in

Africa (2002)rsquo Res 62(XXXII)02 Principle XV

CASES OF THE AFRICAN COURT OF HUMAN AND PEOPLESrsquo

RIGHTS

Referred to in

Media Rights Agenda and Others v Nigeria Commnos 2 23

-MEMORANDUM for theRESPONDENT-

10593 1289413094 and 15296 (1998) (ACHPR)

Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

CASES OF THE EUROPEAN COURT OF HUMAN RIGHTS

Referred to in

Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR

20 May 1999) 65

Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20

May 1999)

Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

Jersild v Denmark App no 159808 (ECHR 23 September 1994)

Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June

2007)

Handyside v United Kingdom App no 549372( ECHR 7 December 1976)

-MEMORANDUM for theRESPONDENT-

Klass and Others v Germany App no 502971(EHRR 6 September 1978)

Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November

2004)

KU v Finland App no 287202 (ECtHR 2 March 2009

Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008)

Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

Worm v Austria (1997) 25 EHRR 454

Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

Silver and Others v United Kingdom Application no 594772 (25

March 1983)

The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November

1991)

Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

-MEMORANDUM for theRESPONDENT-

Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

Kruslin v France App no 1180185(ECHR 24 April 1990)

Huvig v France App No 1110584( ECHR 24 April 1990)

Burghartz v Switzerland (1994) 18 EHRR 101

Von Hannover v Germany (2005) 40 EHRR 1

Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002)

Nebraska Press Association v Stuart427 US 539 559 (1976)

PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001)

Peck v United Kingdom (2003) 36 EHRR 41

New York Times Co v Sullivan 376 US 254 (1964)

Lingens v Austria App no 981582 (ECtHR 8 July 1986)

Friedl v Austria 1522589 (ECHR 31 January 1995)

PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001)

Peck v United Kingdom (2003) 36 EHRR 41

Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR

18 January 2011)

-MEMORANDUM for theRESPONDENT-

X and Y v Netherlands App no 897880(ECHR 26 March 1985)

ETK v News Group Newspapers [2011] EWCA Civ 439

Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no

5422400

(ECtHR 12 December 2000)

Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902

(ECtHR

13 May 2003)

Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006)

Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR

28 March 1990)

HRH Princess of Wales v MGN Newspapers App no1306997 (ECtHR 11

December 2003)

Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July

2009)

-MEMORANDUM for theRESPONDENT-

Klass and Others v Germany (App no 502971)Application

No 502971(ECHR 6 September1978)

Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25

February 1992)

Plon(socieacuteteacute) v FranceApp no 5814800(ECHR 18 May 2004)

Worm v Austria (1997) 25 EHRR 454

X and Y v Netherlands App no897880(ECHR 26 March 1985)

Funke v France App no 1082884(ECHR 25 February 1993) Keegan v

Ireland (1994) 18 EHRR 342

Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

UNITED STATES

Referred to in

McIntyre v Ohio Elections Commission 514 US 334 (1995)

Buckley v Valeo424 US 1 (1976)

Branzburg v Hayes 408 US 665

-MEMORANDUM for theRESPONDENT-

OShea v Littleton 414 US 488 (1974)

Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

Laird v Tatum 408 US 1 (1972)

Meese v Keene 481 US 465 (1987)

Niemotko v Maryland 340 US 268 (1951)

Shuttleworth v Birmingham 394 US 147 (1969)

Frisby v Schultz 487 US 474 (1988)

Katz v United States 389 US 347 (1967)

Acrara v Cloud Books Inc478 US 697 (1986)

Alexander v US 509 US 544 (1993)

Gertz v Welch 418 US 323 (1974)

Time Inc v Firestone 424 US 448 (1976)

Bartnicki v Vopper532 US 514 (2001)

Hutchinson v Proxmire443 US 111 (1979)

Wolston v Readerrsquos Digest Association Inc443 US 157 (1979)

Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981)

-MEMORANDUM for theRESPONDENT-

Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987)

Cox v New Hampshire 312 US 569 (1941)

Freedman v Maryland 380 US 51 (1965)

Madsen v Womenrsquos Health CenterInc et al 512 US 753 (1994)

United States v OBrien 391 US 367 (1968)

Turner Broadcasting System Inc v FCC 512 US 622 (1994)

Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton

536 US 150 (2002)

Ward v Rock Against Racism 491 US 781 (1989)

Galella v Onassis 487 F 2d 986 (1973)

Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

Bartnicki v Vopper532 US 514 (2001)

R v Oakes [1986] 1 SCR 103

New York Times Co v United States 403 US 713

Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186

(1984)

-MEMORANDUM for theRESPONDENT-

HUMAN RIGHTS COMMITTEE

Referred to in

Aduayom Diasso and Dobou v Togo Communications Nos 4221990

4231990

and 4241990 UN Doc CCPRC51D4221990 4231990 and 4241990

(1996)

ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN

Doc CCPRC85D11802003 (2006) (UN Human Rights Committee)

ENGLISH CASES

Referred to

in

A v B and Anr[2002] EWCA Civ 337 (UK)

McKennitt v Ash [2007] 3 WLR 194

Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK)

D v L [2004] EMLR 1 (UK)

Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK)

Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK)

-MEMORANDUM for theRESPONDENT-

R v Broadcasting Standards Commission ex parte British Broadcasting

Corporation (Liberty intervening) [2000] 3 All ER 989 (UK)

R v Loveridge[2001] EWCA Crim 973 (UK)

INDIAN CASES

Referred to in

Zimbabwe

Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231

REGIONAL AND INTERNATIONAL INSTRUMENTS

African Charter on Human and Peoplesrsquo Rights (adopted 27 June

1981entered into force 21 October 1986) (1982) 21 ILM 58

American Convention on Human Rights (adopted 22 November

1969entered into force 18 July 1978)

European Convention on Human Rights (adopted 4 November 1950

entered into force 3 September 1953)

International Covenant on Civil and Political Rights (adopted 16

-MEMORANDUM for theRESPONDENT-

December 1966 entered into force 23 March 1976) 999 UNTS 171

Universal Declaration of Human Rights (adopted 10 December 1948

UNGA Res 217 A(III)

CONSTITUTION

The Constitution of United States of America 1788

The Constitution of Argentina 1853

The Constitution of Belgium 1831

The Constitution of Brazil 1988

The Constitution Act of Finland 2000

The Constitution of India 1950

STATUTES

MISCELLANEOUS

-MEMORANDUM for theRESPONDENT-

Resolution 1003 (1993) on the ethics of journalism adopted by the

Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

Case Concerning the Arrest Warrant of 11 April 2000 (Democratic

Republic of the Congo v Belgium) (Merits) International Court of Justice

14 February 2002

21

Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary

Assembly of Council of Europe 26 July 1998 Article 14(i)

25

STATEMENT OF RELEVANT FACTS

-MEMORANDUM for theRESPONDENT-

ECONOMIC SCENARIO IN MHUGAN

1 The respondent country Republic of Mhugan is a country which obtained

independence in 1959 and since then it has had a parliamentary form of government1 Its

economy has grown rapidly since the late twentieth century fueled by a combination of

information technology industries manufacturing and financial services2

SOCIAL STATUS OF RHO

2 BansitSangnont better known by his stage name Rho is a pop music singer-

songwriter in Mhugan3 Rho after his music video for his song ldquoPokeacutePokeacuterdquo in 2011 became

very successful and was known throughout the world In early 2013 rumors began to

surface that Rho has been physically andor emotionally abusive to his wife an allegation

that Rho has vehemently denied4

COMPANIES PROVIDING INFORMATION ON SEARCH QUERIES

3 Centiplex Corporation based in Mhugan is the leading Internet services company in

Mhugan5 It runs an Internet search engine More than 80 of all search queries in Mhugan

are conducted through Centiplex and the remaining being conducted through Google6

Dexian is a global information services company based in the United States7 Its core

business is collecting aggregating analyzing and disseminating information relating to

1 Compromis para 1

2 Ibid

3 Compromis para 2

4 Compromis para 3

5 Compromis para4

6 Ibid

7 Compromis para 5

-MEMORANDUM for theRESPONDENT-

individuals8 Dexian claims to have records for almost 500 million people although those

records vary widely in their scope completeness and correctness9 The particular methods

that Dexian uses to combine sources and build individual records are not publicly known

and Dexian claims such information to be a trade secret10

4 Centiplex is a Dexian client and both buys and sells data to Dexian11 Prior to the

2013 Search Privacy Act described below no law or regulation in Mhugan restricted a

search enginersquos ability to collect disclose or use information12

ALLEGATIONS IMPOSED ON THON SANG

5 Thon Sang maintains an active blog on the Centiplex platform in Mhugan13 The ad

revenue goes to the centiplex and is not shared with the bloggers themselves14Sang is

ldquocelebrity-obsessedrdquo and his news is dedicated to Mhuganian celebrities15Sang has blogged

about the rumors of Rho abusing his wife writing that ldquoif true people should boycott Rhorsquos

music in protestrdquo16 On May 1 2013 Sang posted a voicemail that Rho left for his friend

8 Ibid

9 Ibid

10 Ibid

11 Compromis para 6

12 Ibid

13 Compromis para 7

14 Ibid

15 Compromis para 8

16 Ibid

-MEMORANDUM for theRESPONDENT-

TaurAklamit17 In the voicemail someone identifying himself as ldquoBansitrdquo said that he was

ldquofurious with my wife for not being more obedientrdquo and that ldquoI need to give her a good

smacking to show her whorsquos in chargerdquo18 Sang wrote in his post that he got this recording

from someone who tried to get into Aklamitrsquos voicemail Sang also wrote ldquoso the rumors are

true Boycott Rho and donrsquot even think about dancing the PokeacutePokeacuterdquo 19

6 The next day Sang posted again to gain more popularity- ldquoMore evidence this time

from Rhorsquos web searches which include lsquohow to control your wifersquo and lsquowhipping

techniquesrsquordquo Sang was very anxious to acquire information regarding Rho and therefore he

purchased Rhorsquos profile from Dexian for 20000 MHD which is approximately 002 Euros

7 On May 4 Rho held a press conference with his wife at his side where he stated

that he left the recorded voicemail for his friend TaurAlkamit and he would never even

dream of striking his wife He called Sang and whoever had recorded the voicemail

ldquovicious unethical and unprofessional rumor mongersrdquo who were ldquocriminals who deserve

to be punishedrdquo while his wife was busy listening to him and did not utter a word at the

conference On May 5 Sang again posted a reply stating that he was disgruntled by Rhorsquos

explanations

8 Sang clarified that the source of the voicemail had explained to him how he or she

had come across the message20 The source had entered Aklamitrsquos number by mistake

Aklamit and the source apparently shared the same password because neither had ever 17 Compromis para 9

18 Ibid

19 Ibid

20 Compromis para13

-MEMORANDUM for theRESPONDENT-

changed it from the default password for the voicemail system ldquo123456rdquo Before the source

had realized the mistake heshe clicked on the first message and heard it21 Suspecting that

the ldquoBansitrdquo on the message was in fact Rho the source then realized that this mailbox was

not hishers The source downloaded the copy of the message and sent the copy to Sang but

asking him not to reveal hisher identity22

PROVISIONS OF WIRETAP ACT

9 Mhuganian law makes it illegal under the Wiretap Act to ldquointentionally intercept or

obtain unauthorized access to any telephone or electronic communications whether in

transit or in storage23rdquo The Wiretap Act further makes it illegal for ldquoany person to

disseminate the contents of a telephone or electronic communications that the person knows

to have been unlawfully intercepted or obtained under this Act24rdquo The Wiretap Act provides

for both civil and criminal penalties Among the civil penalties are statutory damages up to

1000000 MHD The portion of the Wiretap Act described here contains an exception for

anyone acting in an official government capacity25

The Wiretap Act defines ndash

a) ldquodirectly accessedrdquo to include both (1) a link that leads directly to the material and

(2) any link that from the surrounding context reasonably indicates that it will lead

21 Ibid

22 Ibid

23 Compromis para14

24 Ibid

25 Ibid

-MEMORANDUM for theRESPONDENT-

to the prohibited material and does in fact lead to such material regardless of how

many links it takes to reach the prohibited material26

b) A search engine can meet its obligations under such an order by de-indexing the

relevant web pages but such de-indexing is not required so long as the relevant web

pages do not appear on the first page of search results27

c) The order remains in force unless and until the court rules against the plaintiff on

the Wiretap Act claim (or an appellate court rules against the plaintiff on this claim)

or the case is otherwise dismissed If the plaintiff prevails on the claim and

continues to prevail through any appeals the order effectively becomes permanent28

d) The Act provides for both civil and criminal penalties for a violation of such a

search engine order with statutory damages of up to 10000 MHD per day of

violation for a negligent violation and up to 1000000 MHD per day for an

intentional violation Criminal penalties are only available for an intentional

violation29

10 On May 8 2013 Rho sued Sang under the Wiretap Act for knowingly disseminating

the contents of unlawfully obtained communications30 Rho immediately applied for a search

engine order under the Act against Centiplex which the court granted31 The court

26 Compromis para15

27 Ibid

28 Ibid

29 Ibid

30 Compromis para16

31 ibid

-MEMORANDUM for theRESPONDENT-

ultimately ruled that Sang had violated the Wiretap Act and awarded statutory damages to

Rho of 400000 MHD In so ruling the court found under Mhuganian law that while the

sourcersquos initial hearing of the voicemail message may have been accidental the subsequent

downloading of the message to hisher computer was intentional and unauthorized under the

Wiretap Act and that furthermore because Sang had recounted on his blog all of the

relevant facts about the circumstances under which the source had acquired the voicemail

message Sang had the knowledge required to be liable under the Act32

11 Centiplex was given the search engine order by the court for disseminating the

contents of the recorded voicemail under the wiretap act and centiplex immediately began to

comply with the order entered against it33 Centiplex made an appearance in Rhorsquos case

against Sang in order to challenge the validity of the search engine order but the court

upheld the order34

12 In the same lawsuit Rho also sued the unknown source of the recorded voicemail

message as a ldquoJohn Doe35rdquo Rho subpoenaed Sang for the identity of that person Sang filed

a motion with the court to quash the subpoena asserting a privilege to hide the identity of

his source36 The court denied the motion to quash as under Mhuganian law the court does

recognize a qualified privilege not to reveal sources but only to ldquoprofessional journalistsrdquo

32 ibid

33 Compromis para1617

34 Ibid

35 Compromis para18

36 Ibid

-MEMORANDUM for theRESPONDENT-

but Sang was not a professional journalist as he did not disseminate the information to the

public for the gain of livelihood as the revenue goes to the CentiplexHowever the court did

grant a stay of the subpoena

2013 SEARCH PRIVACY ACT

13 On May 15 2013 Mhugan enacted the Search Privacy Act which makes it unlawful

for a search engine to sell information about a personrsquos search queries without that personrsquos

consent37

a) For purposes of this Act a ldquosalerdquo is defined to be a ldquotransfer in exchange for

anything of valuerdquo

b) Information is considered to be information ldquoabout a personrsquos search queriesrdquo if

individual search queries are associated with ldquoany identifier including without

limitation a name address phone number email address government identification

number date of birth or IP addressrdquo

c) The Act does not apply to non-sale transfers of such information nor does it apply

to any subsequent transfers of the same information after an initial transfer by the

search engine whether or not those subsequent transfers are sales

d) The Act contains explicit exceptions for disclosures to law enforcement agencies

pursuant to a warrant subpoena or court order and disclosures incident to the

search enginersquos ordinary course of business

e) The Act provides for compensatory or statutory damages at the plaintiffrsquos election

as well as punitive damages for a ldquowillful violationrdquo

f) The Act is scheduled to become effective on May 1 201438

37 Compromis para19

38 ibid

-MEMORANDUM for theRESPONDENT-

14 On May 20 2013 Centiplex sued in Mhugan to have the Search Privacy Act

declared invalid under the laws and Constitution of Mhugan39 But the court held the search

privacy act to be valid40

15 All of the rulings described above were appealed to the Mhugan Supreme Court the

highest appellate court in Mhugan and the Mhugan Supreme Court dismissed all of the

appeals41

16 Sang and Centiplex have challenged all of the following in the Universal Court of

Human Rights42

a) the damages imposed on Sang for disseminating the recorded voicemail

b) the subpoena to Sang to disclose the source of the recorded voicemail

c) the order against Centiplex requiring that webpages that link to the recorded

voicemail including Sangrsquos blog posts never appear on the first page of search

results

d) the validity of the 2013 Search Privacy Act43

39 Compromis para 20

40 Ibid

41 Compromis para21

42 Compromis para 22

43 Ibid

-MEMORANDUM for theRESPONDENT-

17 No law domestic or international restricts either Sangrsquos or Centiplexrsquos standing to

bring these challenges44 Both Sangrsquos and Centiplexrsquos positions have been rejected on the

merits in the domestic courts of Mhugan and all appeals or other legal remedies within the

Mhuganian court system have been exhausted45

STATEMENT OF JURISDICTION

CASE CONCERNING RIGHTS AND OBLIGATIONS UNDER THE UDHR

SANG AND CENTIPLEX Applicants

v

44 Compromis para 23

45 Ibid

-MEMORANDUM for theRESPONDENT-

THE REPUBLIC OF MHUGAN Respondent

ldquoSang and Centiplex (the Applicants) and the Republic of Mhugan (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 Mhuganian means the

Universal Freedom of Expression Court has jurisdiction in this matterrdquo

IN THE UNIVERSAL FREEDOM OF EXPRESSION COURT

THE RESPONDENT MOST HUMBLY AND RESPECTFULLY SUBMITS TO THE

JURISDICTION OF THIS HONrsquoBLE COURT

QUESTIONSPRESENTED

THE FOLLOWING QUESTIONS HAVE BEEN PRESENTED BEFORE THE COURT

FOR ITS DETERMINATION

1 WHETHER THE DAMAGES IMPOSED ON THE APPLICANT ARE CONSISTENT

WITH THE PROVISIONS OF THE UDHR

-MEMORANDUM for theRESPONDENT-

2 WHETHER THE REQUIREMENT TO DISCLOSE THE SOURCE OF THE

RECORDED VOICEMAIL IS CONSISTENT WITH THE PROVISIONS OF THE

UDHR

3 WHETHER THE SECTION OF THE WIRETAP ACT THAT PROVIDES FOR A

SPECIAL PROVISIONAL REMEDY IS CONSISTENT WITH THE UDHR

4 WHETHER THE PROVISIONS OF THE 2013 SEARCH PRIVACY ACT ARE

CONSISTENT WITH THE UDHR

SUMMARYOF ARGUMENTS

A The courts finding imposed damages of 400000 MHD on the Applicant First the

requirement does not infringe the right to freedom of expression of the Applicant Herein

firstly Respondent submits that the impugned requirement does not restrict the right to

freedom of expression and secondly it does not cause a chilling effect Second property

rights under Article 17 are not infringed because the Applicant cannot enjoy his right by

violating ones right under Article 12 The allegation emphasised by the Applicant does not

contribute to public debate as there are no facts substantiating the allegation Third the

-MEMORANDUM for theRESPONDENT-

Respondent possess a reasonable expectation of privacy under Article 12 which has been

violated after the dissemination of the unauthorised information took place In any event the

restriction is permissible under Article 29(2) of the UDHR It is prescribedby law under the

Wiretap Act The situation in Mhugan shows that the Wiretap Act is clearly in pursuit of the

legitimate aims of serves to protect an individualrsquos right from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR The restriction is necessary in a

democratic society as it corresponds to a pressing social need and is proportionate to the

legitimate aims

B The requirement by the court has mandated the Applicant to disclose the identity of

the source of the voicemail and it does not contravene the rights to freedom of expression

enshrined in Article 19 of the UDHR Herein firstly Article 19 does not include the right to

anonymity secondly it does not cause a chilling effect and finally the requirement does

not constitute prior restraint

Further the requirement does notcontravene the right to privacy guaranteed under Article 12

of the UDHR because there is no actual subjective expectation of privacy which is

objectively reasonable Finally theright to remedy enshrined in Article 8 of the UDHR has

not been violated because the Respondent has a right to effective remedy which is possible

only when the Applicant will disclose the name of the source of the information that

infiltrated the voicemailIn any event these measures are valid limitations under Article

29(2) of the UDHR Theysatisfy the three-tiered test of legality legitimacy and necessity

C The requirement by the Court mandated Centiplex to remove the impugned

information from the first page of search result First it does not contravene the right to

expression enshrined in Article 19 of the UDHR Herein firstly the restriction doesnt

impose filtering or prior restraint secondly it does not create a Chilling effect Second the

-MEMORANDUM for theRESPONDENT-

right to privacy guaranteed under Article 12 is violated as it has a superseding effect on

Applicants right guaranteed under Article 19 In any event these measures are valid

limitations under Article 29(2) of the UDHR They satisfy the three-tier test of legality

legitimacy and necessity

D The requirement under the 2013 Search Privacy Act is consistent with the UDHR

First the requirement does not contravene right to privacy enshrined in Article 12 of the

UDHRItexemplifies how in certain circumstances the right to privacy outweighs the right

to freedom of expression Second it does not contravene Article 19 as it complies with the

three-tier test under Article 29(2) The restriction is prescribed by law as it is made under the

authority of the SPA It is pursuant to the legitimate aim of protection of rights of others as

the Respondent possesses a reasonable expectation of privacy Further the restriction is

necessary in ademocratic society as the dissemination does not warrant to a debate of

general interest

ARGUMENTS

A THE DAMAGES IMPOSED ON THE APPLICANT ARE JUST FAIR AND

CONSISTENT WITH THE PROVISIONS OF THE UDHR

1 The courts finding imposed damages of 400000 MHD46 on the Applicant

Respondent submits that this requirement is consistent with the right to freedom of speech

and expression under Article 19 [I] right to property under Article 17 [II] and valid under

46 Compromis para16

-MEMORANDUM for theRESPONDENT-

Article 29(2) [III] Moreover the dissemination was privacy intrusive under Article 12

UDHR [IV]

I The requirement is not a restriction on Article 19 UDHR

2 Article 19 guarantees ldquothe right to freedom of opinion and expression hellip without

interferencehellipthrough any mediardquo47 Respondent submits that the impugned requirement

does not restrict the right to freedom of expression [a] and does not cause a chilling effect

[b]

a) The requirement does not restrict the freedom of expression

3 Notwithstanding the pressrsquo vital ldquowatchdogrdquo role48 journalists cannot be released

from their duty to obey the ordinary law on the basis that Article 19 of the UDHR affords

them protection49 In Stoll v Switzerland the ECtHR held that there is no lsquowholly

unrestricted freedom of expression even with respect to press reporting of matters of serious

public concernrsquo50 The Respondent emphasises the Courtrsquos sentiment that journalistic

ethics51 play a considerably important role lsquogiven the influence wielded by the media in

contemporary societyrsquo52 It is no excuse to say that Sangrsquos duty as a journalist compelled

47 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19 See also International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

48 Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government Ethics(The ANNALS of the American Academy of Political and Social Science1995 )

49Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

50Stoll (n 49) BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR 20 May 1999) 65

51 Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5 October 2013

52Stoll (n 49) 104

-MEMORANDUM for theRESPONDENT-

him to commit an unlawful act53 when in fact this duty could have been discharged through

legal and ethical means54

4 Moreover it is established that ldquonews broadcasting should be based on truthfulness

ensured by the appropriate means of verification and proof and impartiality in

presentation description and narrationrdquo55 Sang clearly did not follow these standards56

Having in mind that ldquoduties and responsibilities which accompany the exercise of the right

tofreedom of expression by media professionals assume special significance in situations

ofconflict and tensionrdquo57 it can be manifestly perceived that Rho had sent the voicemailonly

to let off some steam to his good friend Taur58 which proves prima faciethere was no such

situation prevailing and dissemination does not meet these standards

b) The impugned requirement does not cause a lsquoChilling effectrsquo

5 Ultimately the Respondent reiterates that there is no interference with the freedom

of the press59 Further the damages60 imposed upon Sang do not amount to a form of

censorship61 intended to discourage the press from expressing criticism62 Requirement to

53 Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt accessed 5 October 2013

54 Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013

55 Resolution 1003 (1993) on the ethics of journalism adopted by the Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

56 Compromis para13

57Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

58 Compromis para11

59Freedom of the Press lthttpwwwpuclorgfrom-archivesMediafreedom-presshtmgt accessed 9 October 210360 Compromis para 16

61 Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October 2013

62Stoll (n 49) 154

-MEMORANDUM for theRESPONDENT-

pay damages was merely to discourage journalist for adopting unlawful methods for

obtaining information63 protect right to privacy enshrined under Article 12 UDHR and

public order64 and is wholly proportionate in this instance The safeguard afforded by

freedom of speech in relation to journalistic reporting on issues of general interest is subject

to the journalistacting in good faith and in accordance with the ethics of journalism65

Regardless of the Applicantrsquos misguided beliefs and best intentions his profession is no

source of immunity or impunity66 the road to perdition is paved with bona-fide intentions

II The requirement does not restrict Article 17 UDHR

6 Sang had doubtlessly breached his lsquoduties and responsibilitiesrsquo67 the ethics of

journalism68 and did not act lsquoin good faithrsquo69Besides the information lsquodoes not bear on

matters of general importancersquo70 and its dissemination is an abuse of the pressrsquos ldquowatchdogrdquo

role71To enhance this contention reliance is placed upon three groundsFirst while earlier

63 Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-

codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

64 Public Order lthttpwwwusiporgguiding-principles-stabilization-and-reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October 2013

65Stoll (n 32) 103

66Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) International Court of Justice 14 February 2002

67The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

68BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20 May 1999)

69Pedersen (n 44)

70Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

71Warren(n 49)

-MEMORANDUM for theRESPONDENT-

decisions of the Strasbourg courts tend not to tolerate high damages awards72 none of them

involved the scale of character assassination like in this case73Second spousal abuse74 is a

serious allegation aimed at scandalising Rhorsquos reputation for negative publicity75 purposes

and third such an allegation does not contribute to public debate where there are no facts

substantiating the allegation76

7 Furthermore such an allegation is solely speculative and was coldly calculated to

inflict maximum damage to Rhorsquos reputation77 Rhorsquos loss must be seen in the context of

his negative publicity78 and its impact on his pecuniary loss arising from the protest79 In

addition to that the grief over loss of reputation and honour which was clearly compounded

by the tasteless spousal abuse allegations80 Rho has absolute right to ask for damages since

his right to privacy is in issue and since ldquothe possibility of taking an action under civil law

should be guaranteed to enable a victim to claim possible damages for invasion of

privacyrdquo81 Furthermore the damages are reasonable and does not violate right to enjoyment

of property of the Applicant

72Jersild v Denmark App no 159808 (ECHR 23 September 1994)

73Clarification 10

74Domestic Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt accessed 6 October 2013

75 What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October 2013

76 Compromis para12

77 Compromis para13

78 Clarification 10

79 Compromis para9

80Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June 2007)

81 Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary Assembly of Council of Europe 26 July 1998 Article 14(i)

-MEMORANDUM for theRESPONDENT-

III In any event the requirement is permissible under Article 29(2) UDHR

a) The requirement is prescribed by law

8 Imposing damages on Sang for breach of the Wiretap Act82 is a justified interference

with his freedom of expression The interference in question is validly provided by law and

serves to protect an individualrsquos right to protection from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR

b) The requirement is in pursuance of legitimate aims

9 The ECtHR in Handyside v United Kingdom83 acknowledged that lsquostate authorities

are in principle in a better position than the international judge to give an opinion on the

exact content of these requirements as well as on the necessity of a restriction of a

penaltyrsquo84 Whether a restriction is necessary in the circumstances is therefore an inquiry

based on the facts and circumstances prevailing in the country concerned which the national

authorities are in a better position to undertake85 For the foregoing reasons the requirement

is in pursuance of legitimate aims

c) The restriction is necessary in a democratic society

10 The thrust of the Mhugan courtrsquos reasoning in imposing damages on Sang was

directed at his dissemination of lsquounlawfully obtained materialrsquo86 ie Rhorsquos recorded

82 Compromis para14

83 App no 549372( ECHR 7 December 1976)

84Handyside(n 28) at [48] The Sunday Times (n 8) Joint Dissenting Opinion of Judges Wiarda Cremona Thor Vilhjalmsson Ryssdal Ganshof van der Meersch Sir Gerald Fitzmaurice Bindschedler-Robert Liesh and Matscher

85Case of Klass and Others v Germany App no 502971(EHRR 6 September 1978)

86 Compromis para16

-MEMORANDUM for theRESPONDENT-

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 4: Oxford Respondent

LIST OF ABBREVIATIONS

para Paragraph

AfCHR African Convention on Human and Peoplesrsquo Rights

ACtHPR African Court of Human and Peoplesrsquo Rights

ACHR American Convention on Human Rights

AIR All India Reporter

App no Application Number

Art Article

cf Confer from

cl Clause

EC European Council

EU European Union

ECHR European Convention on Human Rights

ECtHR European Court of Human Rights

ECmHr European Commission of Human Rights

EHRR European Human Rights Reports

-MEMORANDUM for theRESPONDENT-

SPA Search Privacy Act

HRC Human Rights Committee

IACHR Inter American Court of Human Rights

ICCPR International Covenant on Civil and Political Rights

Prin Principle

ROM Republic of Mhugan

s Section

UDHR Universal Declaration of Human Rights

-MEMORANDUM for theRESPONDENT-

LIST OF AUTHORITIES

ARTICLES AND JOURNALS

Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government

Ethics(The ANNALS of the American Academy of Political and Social

Science1995 )

Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5

October 2013

Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt

accessed 5 October 2013

Law Media Definition of Media Law And Ethics lt httpmedia-

lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed

5 October 2013

Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October

2013

Manner of collection of personal information (principle four) lt

httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-

of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

-MEMORANDUM for theRESPONDENT-

Public Orderlthttpwwwusiporgguiding-principles-stabilization-and-

reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October

2013

Domestic

Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt

accessed 6 October 2013

What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-

publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October

2013

Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University

Press Cambridge 1992) 115

Electronic Privacy Information Centre lsquoData Retentionrsquolt

httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October

2013

Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

Susan Freiwald lsquoUncertain Privacy Communication Attributes After the

Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

Organisation for Economic Co-operation and Development lsquoOECD

Guidelines on the Protection of Privacy and Transborder Flows of Personal

Datarsquo

lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1

_ 1_100htmlgt accessed 3 October 2013

-MEMORANDUM for theRESPONDENT-

Electronic Privacy Information System lsquoRecords Computers and the Rights

of Citizens Report of the Secretarys Advisory Committee on Automated

Personal Data Systems July 1973rsquo

lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

Reasonable Expectation of Privacylthttplegal-

dictionarythefreedictionarycomReasonable+expectation+of+privacygt

accessed 9 October 2013

Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo

(1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData

Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56

Stanford Law Review 191

Legal protection for Journalistic Sourceslt

httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5

October 2013

Mark duezersquo What is journalismProfessional identity and ideology of

journalists reconsidered lthttpjousagepubcomcontent64442abstractgt

accessed 9 October 2013

BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt

httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16

September 2013

Privacy and freedom from state

intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-

-MEMORANDUM for theRESPONDENT-

from-state-intrusiongt accessed 9 October 2013

Freedom from suspicion Principles to protect freedom of expression and

privacy against mass surveillancelt

httpwwwarticle19orgresourcesphpresource37186enfreedom-from-

suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-

mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013

Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013

The substance of the right to effective judicial protection against violation of

social rights lt

httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt

accessed 8 October 2013

African Commission on Human and Peoplesrsquo Rights lsquoResolution on the

Adoption of the Declaration of Principles on Freedom of Expression in

Africa (2002)rsquo Res 62(XXXII)02 Principle XV

CASES OF THE AFRICAN COURT OF HUMAN AND PEOPLESrsquo

RIGHTS

Referred to in

Media Rights Agenda and Others v Nigeria Commnos 2 23

-MEMORANDUM for theRESPONDENT-

10593 1289413094 and 15296 (1998) (ACHPR)

Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

CASES OF THE EUROPEAN COURT OF HUMAN RIGHTS

Referred to in

Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR

20 May 1999) 65

Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20

May 1999)

Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

Jersild v Denmark App no 159808 (ECHR 23 September 1994)

Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June

2007)

Handyside v United Kingdom App no 549372( ECHR 7 December 1976)

-MEMORANDUM for theRESPONDENT-

Klass and Others v Germany App no 502971(EHRR 6 September 1978)

Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November

2004)

KU v Finland App no 287202 (ECtHR 2 March 2009

Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008)

Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

Worm v Austria (1997) 25 EHRR 454

Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

Silver and Others v United Kingdom Application no 594772 (25

March 1983)

The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November

1991)

Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

-MEMORANDUM for theRESPONDENT-

Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

Kruslin v France App no 1180185(ECHR 24 April 1990)

Huvig v France App No 1110584( ECHR 24 April 1990)

Burghartz v Switzerland (1994) 18 EHRR 101

Von Hannover v Germany (2005) 40 EHRR 1

Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002)

Nebraska Press Association v Stuart427 US 539 559 (1976)

PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001)

Peck v United Kingdom (2003) 36 EHRR 41

New York Times Co v Sullivan 376 US 254 (1964)

Lingens v Austria App no 981582 (ECtHR 8 July 1986)

Friedl v Austria 1522589 (ECHR 31 January 1995)

PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001)

Peck v United Kingdom (2003) 36 EHRR 41

Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR

18 January 2011)

-MEMORANDUM for theRESPONDENT-

X and Y v Netherlands App no 897880(ECHR 26 March 1985)

ETK v News Group Newspapers [2011] EWCA Civ 439

Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no

5422400

(ECtHR 12 December 2000)

Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902

(ECtHR

13 May 2003)

Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006)

Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR

28 March 1990)

HRH Princess of Wales v MGN Newspapers App no1306997 (ECtHR 11

December 2003)

Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July

2009)

-MEMORANDUM for theRESPONDENT-

Klass and Others v Germany (App no 502971)Application

No 502971(ECHR 6 September1978)

Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25

February 1992)

Plon(socieacuteteacute) v FranceApp no 5814800(ECHR 18 May 2004)

Worm v Austria (1997) 25 EHRR 454

X and Y v Netherlands App no897880(ECHR 26 March 1985)

Funke v France App no 1082884(ECHR 25 February 1993) Keegan v

Ireland (1994) 18 EHRR 342

Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

UNITED STATES

Referred to in

McIntyre v Ohio Elections Commission 514 US 334 (1995)

Buckley v Valeo424 US 1 (1976)

Branzburg v Hayes 408 US 665

-MEMORANDUM for theRESPONDENT-

OShea v Littleton 414 US 488 (1974)

Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

Laird v Tatum 408 US 1 (1972)

Meese v Keene 481 US 465 (1987)

Niemotko v Maryland 340 US 268 (1951)

Shuttleworth v Birmingham 394 US 147 (1969)

Frisby v Schultz 487 US 474 (1988)

Katz v United States 389 US 347 (1967)

Acrara v Cloud Books Inc478 US 697 (1986)

Alexander v US 509 US 544 (1993)

Gertz v Welch 418 US 323 (1974)

Time Inc v Firestone 424 US 448 (1976)

Bartnicki v Vopper532 US 514 (2001)

Hutchinson v Proxmire443 US 111 (1979)

Wolston v Readerrsquos Digest Association Inc443 US 157 (1979)

Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981)

-MEMORANDUM for theRESPONDENT-

Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987)

Cox v New Hampshire 312 US 569 (1941)

Freedman v Maryland 380 US 51 (1965)

Madsen v Womenrsquos Health CenterInc et al 512 US 753 (1994)

United States v OBrien 391 US 367 (1968)

Turner Broadcasting System Inc v FCC 512 US 622 (1994)

Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton

536 US 150 (2002)

Ward v Rock Against Racism 491 US 781 (1989)

Galella v Onassis 487 F 2d 986 (1973)

Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

Bartnicki v Vopper532 US 514 (2001)

R v Oakes [1986] 1 SCR 103

New York Times Co v United States 403 US 713

Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186

(1984)

-MEMORANDUM for theRESPONDENT-

HUMAN RIGHTS COMMITTEE

Referred to in

Aduayom Diasso and Dobou v Togo Communications Nos 4221990

4231990

and 4241990 UN Doc CCPRC51D4221990 4231990 and 4241990

(1996)

ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN

Doc CCPRC85D11802003 (2006) (UN Human Rights Committee)

ENGLISH CASES

Referred to

in

A v B and Anr[2002] EWCA Civ 337 (UK)

McKennitt v Ash [2007] 3 WLR 194

Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK)

D v L [2004] EMLR 1 (UK)

Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK)

Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK)

-MEMORANDUM for theRESPONDENT-

R v Broadcasting Standards Commission ex parte British Broadcasting

Corporation (Liberty intervening) [2000] 3 All ER 989 (UK)

R v Loveridge[2001] EWCA Crim 973 (UK)

INDIAN CASES

Referred to in

Zimbabwe

Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231

REGIONAL AND INTERNATIONAL INSTRUMENTS

African Charter on Human and Peoplesrsquo Rights (adopted 27 June

1981entered into force 21 October 1986) (1982) 21 ILM 58

American Convention on Human Rights (adopted 22 November

1969entered into force 18 July 1978)

European Convention on Human Rights (adopted 4 November 1950

entered into force 3 September 1953)

International Covenant on Civil and Political Rights (adopted 16

-MEMORANDUM for theRESPONDENT-

December 1966 entered into force 23 March 1976) 999 UNTS 171

Universal Declaration of Human Rights (adopted 10 December 1948

UNGA Res 217 A(III)

CONSTITUTION

The Constitution of United States of America 1788

The Constitution of Argentina 1853

The Constitution of Belgium 1831

The Constitution of Brazil 1988

The Constitution Act of Finland 2000

The Constitution of India 1950

STATUTES

MISCELLANEOUS

-MEMORANDUM for theRESPONDENT-

Resolution 1003 (1993) on the ethics of journalism adopted by the

Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

Case Concerning the Arrest Warrant of 11 April 2000 (Democratic

Republic of the Congo v Belgium) (Merits) International Court of Justice

14 February 2002

21

Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary

Assembly of Council of Europe 26 July 1998 Article 14(i)

25

STATEMENT OF RELEVANT FACTS

-MEMORANDUM for theRESPONDENT-

ECONOMIC SCENARIO IN MHUGAN

1 The respondent country Republic of Mhugan is a country which obtained

independence in 1959 and since then it has had a parliamentary form of government1 Its

economy has grown rapidly since the late twentieth century fueled by a combination of

information technology industries manufacturing and financial services2

SOCIAL STATUS OF RHO

2 BansitSangnont better known by his stage name Rho is a pop music singer-

songwriter in Mhugan3 Rho after his music video for his song ldquoPokeacutePokeacuterdquo in 2011 became

very successful and was known throughout the world In early 2013 rumors began to

surface that Rho has been physically andor emotionally abusive to his wife an allegation

that Rho has vehemently denied4

COMPANIES PROVIDING INFORMATION ON SEARCH QUERIES

3 Centiplex Corporation based in Mhugan is the leading Internet services company in

Mhugan5 It runs an Internet search engine More than 80 of all search queries in Mhugan

are conducted through Centiplex and the remaining being conducted through Google6

Dexian is a global information services company based in the United States7 Its core

business is collecting aggregating analyzing and disseminating information relating to

1 Compromis para 1

2 Ibid

3 Compromis para 2

4 Compromis para 3

5 Compromis para4

6 Ibid

7 Compromis para 5

-MEMORANDUM for theRESPONDENT-

individuals8 Dexian claims to have records for almost 500 million people although those

records vary widely in their scope completeness and correctness9 The particular methods

that Dexian uses to combine sources and build individual records are not publicly known

and Dexian claims such information to be a trade secret10

4 Centiplex is a Dexian client and both buys and sells data to Dexian11 Prior to the

2013 Search Privacy Act described below no law or regulation in Mhugan restricted a

search enginersquos ability to collect disclose or use information12

ALLEGATIONS IMPOSED ON THON SANG

5 Thon Sang maintains an active blog on the Centiplex platform in Mhugan13 The ad

revenue goes to the centiplex and is not shared with the bloggers themselves14Sang is

ldquocelebrity-obsessedrdquo and his news is dedicated to Mhuganian celebrities15Sang has blogged

about the rumors of Rho abusing his wife writing that ldquoif true people should boycott Rhorsquos

music in protestrdquo16 On May 1 2013 Sang posted a voicemail that Rho left for his friend

8 Ibid

9 Ibid

10 Ibid

11 Compromis para 6

12 Ibid

13 Compromis para 7

14 Ibid

15 Compromis para 8

16 Ibid

-MEMORANDUM for theRESPONDENT-

TaurAklamit17 In the voicemail someone identifying himself as ldquoBansitrdquo said that he was

ldquofurious with my wife for not being more obedientrdquo and that ldquoI need to give her a good

smacking to show her whorsquos in chargerdquo18 Sang wrote in his post that he got this recording

from someone who tried to get into Aklamitrsquos voicemail Sang also wrote ldquoso the rumors are

true Boycott Rho and donrsquot even think about dancing the PokeacutePokeacuterdquo 19

6 The next day Sang posted again to gain more popularity- ldquoMore evidence this time

from Rhorsquos web searches which include lsquohow to control your wifersquo and lsquowhipping

techniquesrsquordquo Sang was very anxious to acquire information regarding Rho and therefore he

purchased Rhorsquos profile from Dexian for 20000 MHD which is approximately 002 Euros

7 On May 4 Rho held a press conference with his wife at his side where he stated

that he left the recorded voicemail for his friend TaurAlkamit and he would never even

dream of striking his wife He called Sang and whoever had recorded the voicemail

ldquovicious unethical and unprofessional rumor mongersrdquo who were ldquocriminals who deserve

to be punishedrdquo while his wife was busy listening to him and did not utter a word at the

conference On May 5 Sang again posted a reply stating that he was disgruntled by Rhorsquos

explanations

8 Sang clarified that the source of the voicemail had explained to him how he or she

had come across the message20 The source had entered Aklamitrsquos number by mistake

Aklamit and the source apparently shared the same password because neither had ever 17 Compromis para 9

18 Ibid

19 Ibid

20 Compromis para13

-MEMORANDUM for theRESPONDENT-

changed it from the default password for the voicemail system ldquo123456rdquo Before the source

had realized the mistake heshe clicked on the first message and heard it21 Suspecting that

the ldquoBansitrdquo on the message was in fact Rho the source then realized that this mailbox was

not hishers The source downloaded the copy of the message and sent the copy to Sang but

asking him not to reveal hisher identity22

PROVISIONS OF WIRETAP ACT

9 Mhuganian law makes it illegal under the Wiretap Act to ldquointentionally intercept or

obtain unauthorized access to any telephone or electronic communications whether in

transit or in storage23rdquo The Wiretap Act further makes it illegal for ldquoany person to

disseminate the contents of a telephone or electronic communications that the person knows

to have been unlawfully intercepted or obtained under this Act24rdquo The Wiretap Act provides

for both civil and criminal penalties Among the civil penalties are statutory damages up to

1000000 MHD The portion of the Wiretap Act described here contains an exception for

anyone acting in an official government capacity25

The Wiretap Act defines ndash

a) ldquodirectly accessedrdquo to include both (1) a link that leads directly to the material and

(2) any link that from the surrounding context reasonably indicates that it will lead

21 Ibid

22 Ibid

23 Compromis para14

24 Ibid

25 Ibid

-MEMORANDUM for theRESPONDENT-

to the prohibited material and does in fact lead to such material regardless of how

many links it takes to reach the prohibited material26

b) A search engine can meet its obligations under such an order by de-indexing the

relevant web pages but such de-indexing is not required so long as the relevant web

pages do not appear on the first page of search results27

c) The order remains in force unless and until the court rules against the plaintiff on

the Wiretap Act claim (or an appellate court rules against the plaintiff on this claim)

or the case is otherwise dismissed If the plaintiff prevails on the claim and

continues to prevail through any appeals the order effectively becomes permanent28

d) The Act provides for both civil and criminal penalties for a violation of such a

search engine order with statutory damages of up to 10000 MHD per day of

violation for a negligent violation and up to 1000000 MHD per day for an

intentional violation Criminal penalties are only available for an intentional

violation29

10 On May 8 2013 Rho sued Sang under the Wiretap Act for knowingly disseminating

the contents of unlawfully obtained communications30 Rho immediately applied for a search

engine order under the Act against Centiplex which the court granted31 The court

26 Compromis para15

27 Ibid

28 Ibid

29 Ibid

30 Compromis para16

31 ibid

-MEMORANDUM for theRESPONDENT-

ultimately ruled that Sang had violated the Wiretap Act and awarded statutory damages to

Rho of 400000 MHD In so ruling the court found under Mhuganian law that while the

sourcersquos initial hearing of the voicemail message may have been accidental the subsequent

downloading of the message to hisher computer was intentional and unauthorized under the

Wiretap Act and that furthermore because Sang had recounted on his blog all of the

relevant facts about the circumstances under which the source had acquired the voicemail

message Sang had the knowledge required to be liable under the Act32

11 Centiplex was given the search engine order by the court for disseminating the

contents of the recorded voicemail under the wiretap act and centiplex immediately began to

comply with the order entered against it33 Centiplex made an appearance in Rhorsquos case

against Sang in order to challenge the validity of the search engine order but the court

upheld the order34

12 In the same lawsuit Rho also sued the unknown source of the recorded voicemail

message as a ldquoJohn Doe35rdquo Rho subpoenaed Sang for the identity of that person Sang filed

a motion with the court to quash the subpoena asserting a privilege to hide the identity of

his source36 The court denied the motion to quash as under Mhuganian law the court does

recognize a qualified privilege not to reveal sources but only to ldquoprofessional journalistsrdquo

32 ibid

33 Compromis para1617

34 Ibid

35 Compromis para18

36 Ibid

-MEMORANDUM for theRESPONDENT-

but Sang was not a professional journalist as he did not disseminate the information to the

public for the gain of livelihood as the revenue goes to the CentiplexHowever the court did

grant a stay of the subpoena

2013 SEARCH PRIVACY ACT

13 On May 15 2013 Mhugan enacted the Search Privacy Act which makes it unlawful

for a search engine to sell information about a personrsquos search queries without that personrsquos

consent37

a) For purposes of this Act a ldquosalerdquo is defined to be a ldquotransfer in exchange for

anything of valuerdquo

b) Information is considered to be information ldquoabout a personrsquos search queriesrdquo if

individual search queries are associated with ldquoany identifier including without

limitation a name address phone number email address government identification

number date of birth or IP addressrdquo

c) The Act does not apply to non-sale transfers of such information nor does it apply

to any subsequent transfers of the same information after an initial transfer by the

search engine whether or not those subsequent transfers are sales

d) The Act contains explicit exceptions for disclosures to law enforcement agencies

pursuant to a warrant subpoena or court order and disclosures incident to the

search enginersquos ordinary course of business

e) The Act provides for compensatory or statutory damages at the plaintiffrsquos election

as well as punitive damages for a ldquowillful violationrdquo

f) The Act is scheduled to become effective on May 1 201438

37 Compromis para19

38 ibid

-MEMORANDUM for theRESPONDENT-

14 On May 20 2013 Centiplex sued in Mhugan to have the Search Privacy Act

declared invalid under the laws and Constitution of Mhugan39 But the court held the search

privacy act to be valid40

15 All of the rulings described above were appealed to the Mhugan Supreme Court the

highest appellate court in Mhugan and the Mhugan Supreme Court dismissed all of the

appeals41

16 Sang and Centiplex have challenged all of the following in the Universal Court of

Human Rights42

a) the damages imposed on Sang for disseminating the recorded voicemail

b) the subpoena to Sang to disclose the source of the recorded voicemail

c) the order against Centiplex requiring that webpages that link to the recorded

voicemail including Sangrsquos blog posts never appear on the first page of search

results

d) the validity of the 2013 Search Privacy Act43

39 Compromis para 20

40 Ibid

41 Compromis para21

42 Compromis para 22

43 Ibid

-MEMORANDUM for theRESPONDENT-

17 No law domestic or international restricts either Sangrsquos or Centiplexrsquos standing to

bring these challenges44 Both Sangrsquos and Centiplexrsquos positions have been rejected on the

merits in the domestic courts of Mhugan and all appeals or other legal remedies within the

Mhuganian court system have been exhausted45

STATEMENT OF JURISDICTION

CASE CONCERNING RIGHTS AND OBLIGATIONS UNDER THE UDHR

SANG AND CENTIPLEX Applicants

v

44 Compromis para 23

45 Ibid

-MEMORANDUM for theRESPONDENT-

THE REPUBLIC OF MHUGAN Respondent

ldquoSang and Centiplex (the Applicants) and the Republic of Mhugan (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 Mhuganian means the

Universal Freedom of Expression Court has jurisdiction in this matterrdquo

IN THE UNIVERSAL FREEDOM OF EXPRESSION COURT

THE RESPONDENT MOST HUMBLY AND RESPECTFULLY SUBMITS TO THE

JURISDICTION OF THIS HONrsquoBLE COURT

QUESTIONSPRESENTED

THE FOLLOWING QUESTIONS HAVE BEEN PRESENTED BEFORE THE COURT

FOR ITS DETERMINATION

1 WHETHER THE DAMAGES IMPOSED ON THE APPLICANT ARE CONSISTENT

WITH THE PROVISIONS OF THE UDHR

-MEMORANDUM for theRESPONDENT-

2 WHETHER THE REQUIREMENT TO DISCLOSE THE SOURCE OF THE

RECORDED VOICEMAIL IS CONSISTENT WITH THE PROVISIONS OF THE

UDHR

3 WHETHER THE SECTION OF THE WIRETAP ACT THAT PROVIDES FOR A

SPECIAL PROVISIONAL REMEDY IS CONSISTENT WITH THE UDHR

4 WHETHER THE PROVISIONS OF THE 2013 SEARCH PRIVACY ACT ARE

CONSISTENT WITH THE UDHR

SUMMARYOF ARGUMENTS

A The courts finding imposed damages of 400000 MHD on the Applicant First the

requirement does not infringe the right to freedom of expression of the Applicant Herein

firstly Respondent submits that the impugned requirement does not restrict the right to

freedom of expression and secondly it does not cause a chilling effect Second property

rights under Article 17 are not infringed because the Applicant cannot enjoy his right by

violating ones right under Article 12 The allegation emphasised by the Applicant does not

contribute to public debate as there are no facts substantiating the allegation Third the

-MEMORANDUM for theRESPONDENT-

Respondent possess a reasonable expectation of privacy under Article 12 which has been

violated after the dissemination of the unauthorised information took place In any event the

restriction is permissible under Article 29(2) of the UDHR It is prescribedby law under the

Wiretap Act The situation in Mhugan shows that the Wiretap Act is clearly in pursuit of the

legitimate aims of serves to protect an individualrsquos right from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR The restriction is necessary in a

democratic society as it corresponds to a pressing social need and is proportionate to the

legitimate aims

B The requirement by the court has mandated the Applicant to disclose the identity of

the source of the voicemail and it does not contravene the rights to freedom of expression

enshrined in Article 19 of the UDHR Herein firstly Article 19 does not include the right to

anonymity secondly it does not cause a chilling effect and finally the requirement does

not constitute prior restraint

Further the requirement does notcontravene the right to privacy guaranteed under Article 12

of the UDHR because there is no actual subjective expectation of privacy which is

objectively reasonable Finally theright to remedy enshrined in Article 8 of the UDHR has

not been violated because the Respondent has a right to effective remedy which is possible

only when the Applicant will disclose the name of the source of the information that

infiltrated the voicemailIn any event these measures are valid limitations under Article

29(2) of the UDHR Theysatisfy the three-tiered test of legality legitimacy and necessity

C The requirement by the Court mandated Centiplex to remove the impugned

information from the first page of search result First it does not contravene the right to

expression enshrined in Article 19 of the UDHR Herein firstly the restriction doesnt

impose filtering or prior restraint secondly it does not create a Chilling effect Second the

-MEMORANDUM for theRESPONDENT-

right to privacy guaranteed under Article 12 is violated as it has a superseding effect on

Applicants right guaranteed under Article 19 In any event these measures are valid

limitations under Article 29(2) of the UDHR They satisfy the three-tier test of legality

legitimacy and necessity

D The requirement under the 2013 Search Privacy Act is consistent with the UDHR

First the requirement does not contravene right to privacy enshrined in Article 12 of the

UDHRItexemplifies how in certain circumstances the right to privacy outweighs the right

to freedom of expression Second it does not contravene Article 19 as it complies with the

three-tier test under Article 29(2) The restriction is prescribed by law as it is made under the

authority of the SPA It is pursuant to the legitimate aim of protection of rights of others as

the Respondent possesses a reasonable expectation of privacy Further the restriction is

necessary in ademocratic society as the dissemination does not warrant to a debate of

general interest

ARGUMENTS

A THE DAMAGES IMPOSED ON THE APPLICANT ARE JUST FAIR AND

CONSISTENT WITH THE PROVISIONS OF THE UDHR

1 The courts finding imposed damages of 400000 MHD46 on the Applicant

Respondent submits that this requirement is consistent with the right to freedom of speech

and expression under Article 19 [I] right to property under Article 17 [II] and valid under

46 Compromis para16

-MEMORANDUM for theRESPONDENT-

Article 29(2) [III] Moreover the dissemination was privacy intrusive under Article 12

UDHR [IV]

I The requirement is not a restriction on Article 19 UDHR

2 Article 19 guarantees ldquothe right to freedom of opinion and expression hellip without

interferencehellipthrough any mediardquo47 Respondent submits that the impugned requirement

does not restrict the right to freedom of expression [a] and does not cause a chilling effect

[b]

a) The requirement does not restrict the freedom of expression

3 Notwithstanding the pressrsquo vital ldquowatchdogrdquo role48 journalists cannot be released

from their duty to obey the ordinary law on the basis that Article 19 of the UDHR affords

them protection49 In Stoll v Switzerland the ECtHR held that there is no lsquowholly

unrestricted freedom of expression even with respect to press reporting of matters of serious

public concernrsquo50 The Respondent emphasises the Courtrsquos sentiment that journalistic

ethics51 play a considerably important role lsquogiven the influence wielded by the media in

contemporary societyrsquo52 It is no excuse to say that Sangrsquos duty as a journalist compelled

47 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19 See also International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

48 Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government Ethics(The ANNALS of the American Academy of Political and Social Science1995 )

49Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

50Stoll (n 49) BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR 20 May 1999) 65

51 Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5 October 2013

52Stoll (n 49) 104

-MEMORANDUM for theRESPONDENT-

him to commit an unlawful act53 when in fact this duty could have been discharged through

legal and ethical means54

4 Moreover it is established that ldquonews broadcasting should be based on truthfulness

ensured by the appropriate means of verification and proof and impartiality in

presentation description and narrationrdquo55 Sang clearly did not follow these standards56

Having in mind that ldquoduties and responsibilities which accompany the exercise of the right

tofreedom of expression by media professionals assume special significance in situations

ofconflict and tensionrdquo57 it can be manifestly perceived that Rho had sent the voicemailonly

to let off some steam to his good friend Taur58 which proves prima faciethere was no such

situation prevailing and dissemination does not meet these standards

b) The impugned requirement does not cause a lsquoChilling effectrsquo

5 Ultimately the Respondent reiterates that there is no interference with the freedom

of the press59 Further the damages60 imposed upon Sang do not amount to a form of

censorship61 intended to discourage the press from expressing criticism62 Requirement to

53 Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt accessed 5 October 2013

54 Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013

55 Resolution 1003 (1993) on the ethics of journalism adopted by the Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

56 Compromis para13

57Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

58 Compromis para11

59Freedom of the Press lthttpwwwpuclorgfrom-archivesMediafreedom-presshtmgt accessed 9 October 210360 Compromis para 16

61 Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October 2013

62Stoll (n 49) 154

-MEMORANDUM for theRESPONDENT-

pay damages was merely to discourage journalist for adopting unlawful methods for

obtaining information63 protect right to privacy enshrined under Article 12 UDHR and

public order64 and is wholly proportionate in this instance The safeguard afforded by

freedom of speech in relation to journalistic reporting on issues of general interest is subject

to the journalistacting in good faith and in accordance with the ethics of journalism65

Regardless of the Applicantrsquos misguided beliefs and best intentions his profession is no

source of immunity or impunity66 the road to perdition is paved with bona-fide intentions

II The requirement does not restrict Article 17 UDHR

6 Sang had doubtlessly breached his lsquoduties and responsibilitiesrsquo67 the ethics of

journalism68 and did not act lsquoin good faithrsquo69Besides the information lsquodoes not bear on

matters of general importancersquo70 and its dissemination is an abuse of the pressrsquos ldquowatchdogrdquo

role71To enhance this contention reliance is placed upon three groundsFirst while earlier

63 Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-

codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

64 Public Order lthttpwwwusiporgguiding-principles-stabilization-and-reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October 2013

65Stoll (n 32) 103

66Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) International Court of Justice 14 February 2002

67The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

68BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20 May 1999)

69Pedersen (n 44)

70Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

71Warren(n 49)

-MEMORANDUM for theRESPONDENT-

decisions of the Strasbourg courts tend not to tolerate high damages awards72 none of them

involved the scale of character assassination like in this case73Second spousal abuse74 is a

serious allegation aimed at scandalising Rhorsquos reputation for negative publicity75 purposes

and third such an allegation does not contribute to public debate where there are no facts

substantiating the allegation76

7 Furthermore such an allegation is solely speculative and was coldly calculated to

inflict maximum damage to Rhorsquos reputation77 Rhorsquos loss must be seen in the context of

his negative publicity78 and its impact on his pecuniary loss arising from the protest79 In

addition to that the grief over loss of reputation and honour which was clearly compounded

by the tasteless spousal abuse allegations80 Rho has absolute right to ask for damages since

his right to privacy is in issue and since ldquothe possibility of taking an action under civil law

should be guaranteed to enable a victim to claim possible damages for invasion of

privacyrdquo81 Furthermore the damages are reasonable and does not violate right to enjoyment

of property of the Applicant

72Jersild v Denmark App no 159808 (ECHR 23 September 1994)

73Clarification 10

74Domestic Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt accessed 6 October 2013

75 What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October 2013

76 Compromis para12

77 Compromis para13

78 Clarification 10

79 Compromis para9

80Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June 2007)

81 Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary Assembly of Council of Europe 26 July 1998 Article 14(i)

-MEMORANDUM for theRESPONDENT-

III In any event the requirement is permissible under Article 29(2) UDHR

a) The requirement is prescribed by law

8 Imposing damages on Sang for breach of the Wiretap Act82 is a justified interference

with his freedom of expression The interference in question is validly provided by law and

serves to protect an individualrsquos right to protection from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR

b) The requirement is in pursuance of legitimate aims

9 The ECtHR in Handyside v United Kingdom83 acknowledged that lsquostate authorities

are in principle in a better position than the international judge to give an opinion on the

exact content of these requirements as well as on the necessity of a restriction of a

penaltyrsquo84 Whether a restriction is necessary in the circumstances is therefore an inquiry

based on the facts and circumstances prevailing in the country concerned which the national

authorities are in a better position to undertake85 For the foregoing reasons the requirement

is in pursuance of legitimate aims

c) The restriction is necessary in a democratic society

10 The thrust of the Mhugan courtrsquos reasoning in imposing damages on Sang was

directed at his dissemination of lsquounlawfully obtained materialrsquo86 ie Rhorsquos recorded

82 Compromis para14

83 App no 549372( ECHR 7 December 1976)

84Handyside(n 28) at [48] The Sunday Times (n 8) Joint Dissenting Opinion of Judges Wiarda Cremona Thor Vilhjalmsson Ryssdal Ganshof van der Meersch Sir Gerald Fitzmaurice Bindschedler-Robert Liesh and Matscher

85Case of Klass and Others v Germany App no 502971(EHRR 6 September 1978)

86 Compromis para16

-MEMORANDUM for theRESPONDENT-

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 5: Oxford Respondent

SPA Search Privacy Act

HRC Human Rights Committee

IACHR Inter American Court of Human Rights

ICCPR International Covenant on Civil and Political Rights

Prin Principle

ROM Republic of Mhugan

s Section

UDHR Universal Declaration of Human Rights

-MEMORANDUM for theRESPONDENT-

LIST OF AUTHORITIES

ARTICLES AND JOURNALS

Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government

Ethics(The ANNALS of the American Academy of Political and Social

Science1995 )

Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5

October 2013

Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt

accessed 5 October 2013

Law Media Definition of Media Law And Ethics lt httpmedia-

lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed

5 October 2013

Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October

2013

Manner of collection of personal information (principle four) lt

httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-

of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

-MEMORANDUM for theRESPONDENT-

Public Orderlthttpwwwusiporgguiding-principles-stabilization-and-

reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October

2013

Domestic

Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt

accessed 6 October 2013

What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-

publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October

2013

Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University

Press Cambridge 1992) 115

Electronic Privacy Information Centre lsquoData Retentionrsquolt

httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October

2013

Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

Susan Freiwald lsquoUncertain Privacy Communication Attributes After the

Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

Organisation for Economic Co-operation and Development lsquoOECD

Guidelines on the Protection of Privacy and Transborder Flows of Personal

Datarsquo

lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1

_ 1_100htmlgt accessed 3 October 2013

-MEMORANDUM for theRESPONDENT-

Electronic Privacy Information System lsquoRecords Computers and the Rights

of Citizens Report of the Secretarys Advisory Committee on Automated

Personal Data Systems July 1973rsquo

lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

Reasonable Expectation of Privacylthttplegal-

dictionarythefreedictionarycomReasonable+expectation+of+privacygt

accessed 9 October 2013

Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo

(1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData

Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56

Stanford Law Review 191

Legal protection for Journalistic Sourceslt

httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5

October 2013

Mark duezersquo What is journalismProfessional identity and ideology of

journalists reconsidered lthttpjousagepubcomcontent64442abstractgt

accessed 9 October 2013

BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt

httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16

September 2013

Privacy and freedom from state

intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-

-MEMORANDUM for theRESPONDENT-

from-state-intrusiongt accessed 9 October 2013

Freedom from suspicion Principles to protect freedom of expression and

privacy against mass surveillancelt

httpwwwarticle19orgresourcesphpresource37186enfreedom-from-

suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-

mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013

Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013

The substance of the right to effective judicial protection against violation of

social rights lt

httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt

accessed 8 October 2013

African Commission on Human and Peoplesrsquo Rights lsquoResolution on the

Adoption of the Declaration of Principles on Freedom of Expression in

Africa (2002)rsquo Res 62(XXXII)02 Principle XV

CASES OF THE AFRICAN COURT OF HUMAN AND PEOPLESrsquo

RIGHTS

Referred to in

Media Rights Agenda and Others v Nigeria Commnos 2 23

-MEMORANDUM for theRESPONDENT-

10593 1289413094 and 15296 (1998) (ACHPR)

Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

CASES OF THE EUROPEAN COURT OF HUMAN RIGHTS

Referred to in

Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR

20 May 1999) 65

Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20

May 1999)

Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

Jersild v Denmark App no 159808 (ECHR 23 September 1994)

Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June

2007)

Handyside v United Kingdom App no 549372( ECHR 7 December 1976)

-MEMORANDUM for theRESPONDENT-

Klass and Others v Germany App no 502971(EHRR 6 September 1978)

Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November

2004)

KU v Finland App no 287202 (ECtHR 2 March 2009

Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008)

Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

Worm v Austria (1997) 25 EHRR 454

Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

Silver and Others v United Kingdom Application no 594772 (25

March 1983)

The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November

1991)

Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

-MEMORANDUM for theRESPONDENT-

Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

Kruslin v France App no 1180185(ECHR 24 April 1990)

Huvig v France App No 1110584( ECHR 24 April 1990)

Burghartz v Switzerland (1994) 18 EHRR 101

Von Hannover v Germany (2005) 40 EHRR 1

Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002)

Nebraska Press Association v Stuart427 US 539 559 (1976)

PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001)

Peck v United Kingdom (2003) 36 EHRR 41

New York Times Co v Sullivan 376 US 254 (1964)

Lingens v Austria App no 981582 (ECtHR 8 July 1986)

Friedl v Austria 1522589 (ECHR 31 January 1995)

PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001)

Peck v United Kingdom (2003) 36 EHRR 41

Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR

18 January 2011)

-MEMORANDUM for theRESPONDENT-

X and Y v Netherlands App no 897880(ECHR 26 March 1985)

ETK v News Group Newspapers [2011] EWCA Civ 439

Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no

5422400

(ECtHR 12 December 2000)

Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902

(ECtHR

13 May 2003)

Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006)

Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR

28 March 1990)

HRH Princess of Wales v MGN Newspapers App no1306997 (ECtHR 11

December 2003)

Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July

2009)

-MEMORANDUM for theRESPONDENT-

Klass and Others v Germany (App no 502971)Application

No 502971(ECHR 6 September1978)

Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25

February 1992)

Plon(socieacuteteacute) v FranceApp no 5814800(ECHR 18 May 2004)

Worm v Austria (1997) 25 EHRR 454

X and Y v Netherlands App no897880(ECHR 26 March 1985)

Funke v France App no 1082884(ECHR 25 February 1993) Keegan v

Ireland (1994) 18 EHRR 342

Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

UNITED STATES

Referred to in

McIntyre v Ohio Elections Commission 514 US 334 (1995)

Buckley v Valeo424 US 1 (1976)

Branzburg v Hayes 408 US 665

-MEMORANDUM for theRESPONDENT-

OShea v Littleton 414 US 488 (1974)

Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

Laird v Tatum 408 US 1 (1972)

Meese v Keene 481 US 465 (1987)

Niemotko v Maryland 340 US 268 (1951)

Shuttleworth v Birmingham 394 US 147 (1969)

Frisby v Schultz 487 US 474 (1988)

Katz v United States 389 US 347 (1967)

Acrara v Cloud Books Inc478 US 697 (1986)

Alexander v US 509 US 544 (1993)

Gertz v Welch 418 US 323 (1974)

Time Inc v Firestone 424 US 448 (1976)

Bartnicki v Vopper532 US 514 (2001)

Hutchinson v Proxmire443 US 111 (1979)

Wolston v Readerrsquos Digest Association Inc443 US 157 (1979)

Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981)

-MEMORANDUM for theRESPONDENT-

Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987)

Cox v New Hampshire 312 US 569 (1941)

Freedman v Maryland 380 US 51 (1965)

Madsen v Womenrsquos Health CenterInc et al 512 US 753 (1994)

United States v OBrien 391 US 367 (1968)

Turner Broadcasting System Inc v FCC 512 US 622 (1994)

Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton

536 US 150 (2002)

Ward v Rock Against Racism 491 US 781 (1989)

Galella v Onassis 487 F 2d 986 (1973)

Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

Bartnicki v Vopper532 US 514 (2001)

R v Oakes [1986] 1 SCR 103

New York Times Co v United States 403 US 713

Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186

(1984)

-MEMORANDUM for theRESPONDENT-

HUMAN RIGHTS COMMITTEE

Referred to in

Aduayom Diasso and Dobou v Togo Communications Nos 4221990

4231990

and 4241990 UN Doc CCPRC51D4221990 4231990 and 4241990

(1996)

ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN

Doc CCPRC85D11802003 (2006) (UN Human Rights Committee)

ENGLISH CASES

Referred to

in

A v B and Anr[2002] EWCA Civ 337 (UK)

McKennitt v Ash [2007] 3 WLR 194

Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK)

D v L [2004] EMLR 1 (UK)

Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK)

Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK)

-MEMORANDUM for theRESPONDENT-

R v Broadcasting Standards Commission ex parte British Broadcasting

Corporation (Liberty intervening) [2000] 3 All ER 989 (UK)

R v Loveridge[2001] EWCA Crim 973 (UK)

INDIAN CASES

Referred to in

Zimbabwe

Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231

REGIONAL AND INTERNATIONAL INSTRUMENTS

African Charter on Human and Peoplesrsquo Rights (adopted 27 June

1981entered into force 21 October 1986) (1982) 21 ILM 58

American Convention on Human Rights (adopted 22 November

1969entered into force 18 July 1978)

European Convention on Human Rights (adopted 4 November 1950

entered into force 3 September 1953)

International Covenant on Civil and Political Rights (adopted 16

-MEMORANDUM for theRESPONDENT-

December 1966 entered into force 23 March 1976) 999 UNTS 171

Universal Declaration of Human Rights (adopted 10 December 1948

UNGA Res 217 A(III)

CONSTITUTION

The Constitution of United States of America 1788

The Constitution of Argentina 1853

The Constitution of Belgium 1831

The Constitution of Brazil 1988

The Constitution Act of Finland 2000

The Constitution of India 1950

STATUTES

MISCELLANEOUS

-MEMORANDUM for theRESPONDENT-

Resolution 1003 (1993) on the ethics of journalism adopted by the

Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

Case Concerning the Arrest Warrant of 11 April 2000 (Democratic

Republic of the Congo v Belgium) (Merits) International Court of Justice

14 February 2002

21

Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary

Assembly of Council of Europe 26 July 1998 Article 14(i)

25

STATEMENT OF RELEVANT FACTS

-MEMORANDUM for theRESPONDENT-

ECONOMIC SCENARIO IN MHUGAN

1 The respondent country Republic of Mhugan is a country which obtained

independence in 1959 and since then it has had a parliamentary form of government1 Its

economy has grown rapidly since the late twentieth century fueled by a combination of

information technology industries manufacturing and financial services2

SOCIAL STATUS OF RHO

2 BansitSangnont better known by his stage name Rho is a pop music singer-

songwriter in Mhugan3 Rho after his music video for his song ldquoPokeacutePokeacuterdquo in 2011 became

very successful and was known throughout the world In early 2013 rumors began to

surface that Rho has been physically andor emotionally abusive to his wife an allegation

that Rho has vehemently denied4

COMPANIES PROVIDING INFORMATION ON SEARCH QUERIES

3 Centiplex Corporation based in Mhugan is the leading Internet services company in

Mhugan5 It runs an Internet search engine More than 80 of all search queries in Mhugan

are conducted through Centiplex and the remaining being conducted through Google6

Dexian is a global information services company based in the United States7 Its core

business is collecting aggregating analyzing and disseminating information relating to

1 Compromis para 1

2 Ibid

3 Compromis para 2

4 Compromis para 3

5 Compromis para4

6 Ibid

7 Compromis para 5

-MEMORANDUM for theRESPONDENT-

individuals8 Dexian claims to have records for almost 500 million people although those

records vary widely in their scope completeness and correctness9 The particular methods

that Dexian uses to combine sources and build individual records are not publicly known

and Dexian claims such information to be a trade secret10

4 Centiplex is a Dexian client and both buys and sells data to Dexian11 Prior to the

2013 Search Privacy Act described below no law or regulation in Mhugan restricted a

search enginersquos ability to collect disclose or use information12

ALLEGATIONS IMPOSED ON THON SANG

5 Thon Sang maintains an active blog on the Centiplex platform in Mhugan13 The ad

revenue goes to the centiplex and is not shared with the bloggers themselves14Sang is

ldquocelebrity-obsessedrdquo and his news is dedicated to Mhuganian celebrities15Sang has blogged

about the rumors of Rho abusing his wife writing that ldquoif true people should boycott Rhorsquos

music in protestrdquo16 On May 1 2013 Sang posted a voicemail that Rho left for his friend

8 Ibid

9 Ibid

10 Ibid

11 Compromis para 6

12 Ibid

13 Compromis para 7

14 Ibid

15 Compromis para 8

16 Ibid

-MEMORANDUM for theRESPONDENT-

TaurAklamit17 In the voicemail someone identifying himself as ldquoBansitrdquo said that he was

ldquofurious with my wife for not being more obedientrdquo and that ldquoI need to give her a good

smacking to show her whorsquos in chargerdquo18 Sang wrote in his post that he got this recording

from someone who tried to get into Aklamitrsquos voicemail Sang also wrote ldquoso the rumors are

true Boycott Rho and donrsquot even think about dancing the PokeacutePokeacuterdquo 19

6 The next day Sang posted again to gain more popularity- ldquoMore evidence this time

from Rhorsquos web searches which include lsquohow to control your wifersquo and lsquowhipping

techniquesrsquordquo Sang was very anxious to acquire information regarding Rho and therefore he

purchased Rhorsquos profile from Dexian for 20000 MHD which is approximately 002 Euros

7 On May 4 Rho held a press conference with his wife at his side where he stated

that he left the recorded voicemail for his friend TaurAlkamit and he would never even

dream of striking his wife He called Sang and whoever had recorded the voicemail

ldquovicious unethical and unprofessional rumor mongersrdquo who were ldquocriminals who deserve

to be punishedrdquo while his wife was busy listening to him and did not utter a word at the

conference On May 5 Sang again posted a reply stating that he was disgruntled by Rhorsquos

explanations

8 Sang clarified that the source of the voicemail had explained to him how he or she

had come across the message20 The source had entered Aklamitrsquos number by mistake

Aklamit and the source apparently shared the same password because neither had ever 17 Compromis para 9

18 Ibid

19 Ibid

20 Compromis para13

-MEMORANDUM for theRESPONDENT-

changed it from the default password for the voicemail system ldquo123456rdquo Before the source

had realized the mistake heshe clicked on the first message and heard it21 Suspecting that

the ldquoBansitrdquo on the message was in fact Rho the source then realized that this mailbox was

not hishers The source downloaded the copy of the message and sent the copy to Sang but

asking him not to reveal hisher identity22

PROVISIONS OF WIRETAP ACT

9 Mhuganian law makes it illegal under the Wiretap Act to ldquointentionally intercept or

obtain unauthorized access to any telephone or electronic communications whether in

transit or in storage23rdquo The Wiretap Act further makes it illegal for ldquoany person to

disseminate the contents of a telephone or electronic communications that the person knows

to have been unlawfully intercepted or obtained under this Act24rdquo The Wiretap Act provides

for both civil and criminal penalties Among the civil penalties are statutory damages up to

1000000 MHD The portion of the Wiretap Act described here contains an exception for

anyone acting in an official government capacity25

The Wiretap Act defines ndash

a) ldquodirectly accessedrdquo to include both (1) a link that leads directly to the material and

(2) any link that from the surrounding context reasonably indicates that it will lead

21 Ibid

22 Ibid

23 Compromis para14

24 Ibid

25 Ibid

-MEMORANDUM for theRESPONDENT-

to the prohibited material and does in fact lead to such material regardless of how

many links it takes to reach the prohibited material26

b) A search engine can meet its obligations under such an order by de-indexing the

relevant web pages but such de-indexing is not required so long as the relevant web

pages do not appear on the first page of search results27

c) The order remains in force unless and until the court rules against the plaintiff on

the Wiretap Act claim (or an appellate court rules against the plaintiff on this claim)

or the case is otherwise dismissed If the plaintiff prevails on the claim and

continues to prevail through any appeals the order effectively becomes permanent28

d) The Act provides for both civil and criminal penalties for a violation of such a

search engine order with statutory damages of up to 10000 MHD per day of

violation for a negligent violation and up to 1000000 MHD per day for an

intentional violation Criminal penalties are only available for an intentional

violation29

10 On May 8 2013 Rho sued Sang under the Wiretap Act for knowingly disseminating

the contents of unlawfully obtained communications30 Rho immediately applied for a search

engine order under the Act against Centiplex which the court granted31 The court

26 Compromis para15

27 Ibid

28 Ibid

29 Ibid

30 Compromis para16

31 ibid

-MEMORANDUM for theRESPONDENT-

ultimately ruled that Sang had violated the Wiretap Act and awarded statutory damages to

Rho of 400000 MHD In so ruling the court found under Mhuganian law that while the

sourcersquos initial hearing of the voicemail message may have been accidental the subsequent

downloading of the message to hisher computer was intentional and unauthorized under the

Wiretap Act and that furthermore because Sang had recounted on his blog all of the

relevant facts about the circumstances under which the source had acquired the voicemail

message Sang had the knowledge required to be liable under the Act32

11 Centiplex was given the search engine order by the court for disseminating the

contents of the recorded voicemail under the wiretap act and centiplex immediately began to

comply with the order entered against it33 Centiplex made an appearance in Rhorsquos case

against Sang in order to challenge the validity of the search engine order but the court

upheld the order34

12 In the same lawsuit Rho also sued the unknown source of the recorded voicemail

message as a ldquoJohn Doe35rdquo Rho subpoenaed Sang for the identity of that person Sang filed

a motion with the court to quash the subpoena asserting a privilege to hide the identity of

his source36 The court denied the motion to quash as under Mhuganian law the court does

recognize a qualified privilege not to reveal sources but only to ldquoprofessional journalistsrdquo

32 ibid

33 Compromis para1617

34 Ibid

35 Compromis para18

36 Ibid

-MEMORANDUM for theRESPONDENT-

but Sang was not a professional journalist as he did not disseminate the information to the

public for the gain of livelihood as the revenue goes to the CentiplexHowever the court did

grant a stay of the subpoena

2013 SEARCH PRIVACY ACT

13 On May 15 2013 Mhugan enacted the Search Privacy Act which makes it unlawful

for a search engine to sell information about a personrsquos search queries without that personrsquos

consent37

a) For purposes of this Act a ldquosalerdquo is defined to be a ldquotransfer in exchange for

anything of valuerdquo

b) Information is considered to be information ldquoabout a personrsquos search queriesrdquo if

individual search queries are associated with ldquoany identifier including without

limitation a name address phone number email address government identification

number date of birth or IP addressrdquo

c) The Act does not apply to non-sale transfers of such information nor does it apply

to any subsequent transfers of the same information after an initial transfer by the

search engine whether or not those subsequent transfers are sales

d) The Act contains explicit exceptions for disclosures to law enforcement agencies

pursuant to a warrant subpoena or court order and disclosures incident to the

search enginersquos ordinary course of business

e) The Act provides for compensatory or statutory damages at the plaintiffrsquos election

as well as punitive damages for a ldquowillful violationrdquo

f) The Act is scheduled to become effective on May 1 201438

37 Compromis para19

38 ibid

-MEMORANDUM for theRESPONDENT-

14 On May 20 2013 Centiplex sued in Mhugan to have the Search Privacy Act

declared invalid under the laws and Constitution of Mhugan39 But the court held the search

privacy act to be valid40

15 All of the rulings described above were appealed to the Mhugan Supreme Court the

highest appellate court in Mhugan and the Mhugan Supreme Court dismissed all of the

appeals41

16 Sang and Centiplex have challenged all of the following in the Universal Court of

Human Rights42

a) the damages imposed on Sang for disseminating the recorded voicemail

b) the subpoena to Sang to disclose the source of the recorded voicemail

c) the order against Centiplex requiring that webpages that link to the recorded

voicemail including Sangrsquos blog posts never appear on the first page of search

results

d) the validity of the 2013 Search Privacy Act43

39 Compromis para 20

40 Ibid

41 Compromis para21

42 Compromis para 22

43 Ibid

-MEMORANDUM for theRESPONDENT-

17 No law domestic or international restricts either Sangrsquos or Centiplexrsquos standing to

bring these challenges44 Both Sangrsquos and Centiplexrsquos positions have been rejected on the

merits in the domestic courts of Mhugan and all appeals or other legal remedies within the

Mhuganian court system have been exhausted45

STATEMENT OF JURISDICTION

CASE CONCERNING RIGHTS AND OBLIGATIONS UNDER THE UDHR

SANG AND CENTIPLEX Applicants

v

44 Compromis para 23

45 Ibid

-MEMORANDUM for theRESPONDENT-

THE REPUBLIC OF MHUGAN Respondent

ldquoSang and Centiplex (the Applicants) and the Republic of Mhugan (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 Mhuganian means the

Universal Freedom of Expression Court has jurisdiction in this matterrdquo

IN THE UNIVERSAL FREEDOM OF EXPRESSION COURT

THE RESPONDENT MOST HUMBLY AND RESPECTFULLY SUBMITS TO THE

JURISDICTION OF THIS HONrsquoBLE COURT

QUESTIONSPRESENTED

THE FOLLOWING QUESTIONS HAVE BEEN PRESENTED BEFORE THE COURT

FOR ITS DETERMINATION

1 WHETHER THE DAMAGES IMPOSED ON THE APPLICANT ARE CONSISTENT

WITH THE PROVISIONS OF THE UDHR

-MEMORANDUM for theRESPONDENT-

2 WHETHER THE REQUIREMENT TO DISCLOSE THE SOURCE OF THE

RECORDED VOICEMAIL IS CONSISTENT WITH THE PROVISIONS OF THE

UDHR

3 WHETHER THE SECTION OF THE WIRETAP ACT THAT PROVIDES FOR A

SPECIAL PROVISIONAL REMEDY IS CONSISTENT WITH THE UDHR

4 WHETHER THE PROVISIONS OF THE 2013 SEARCH PRIVACY ACT ARE

CONSISTENT WITH THE UDHR

SUMMARYOF ARGUMENTS

A The courts finding imposed damages of 400000 MHD on the Applicant First the

requirement does not infringe the right to freedom of expression of the Applicant Herein

firstly Respondent submits that the impugned requirement does not restrict the right to

freedom of expression and secondly it does not cause a chilling effect Second property

rights under Article 17 are not infringed because the Applicant cannot enjoy his right by

violating ones right under Article 12 The allegation emphasised by the Applicant does not

contribute to public debate as there are no facts substantiating the allegation Third the

-MEMORANDUM for theRESPONDENT-

Respondent possess a reasonable expectation of privacy under Article 12 which has been

violated after the dissemination of the unauthorised information took place In any event the

restriction is permissible under Article 29(2) of the UDHR It is prescribedby law under the

Wiretap Act The situation in Mhugan shows that the Wiretap Act is clearly in pursuit of the

legitimate aims of serves to protect an individualrsquos right from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR The restriction is necessary in a

democratic society as it corresponds to a pressing social need and is proportionate to the

legitimate aims

B The requirement by the court has mandated the Applicant to disclose the identity of

the source of the voicemail and it does not contravene the rights to freedom of expression

enshrined in Article 19 of the UDHR Herein firstly Article 19 does not include the right to

anonymity secondly it does not cause a chilling effect and finally the requirement does

not constitute prior restraint

Further the requirement does notcontravene the right to privacy guaranteed under Article 12

of the UDHR because there is no actual subjective expectation of privacy which is

objectively reasonable Finally theright to remedy enshrined in Article 8 of the UDHR has

not been violated because the Respondent has a right to effective remedy which is possible

only when the Applicant will disclose the name of the source of the information that

infiltrated the voicemailIn any event these measures are valid limitations under Article

29(2) of the UDHR Theysatisfy the three-tiered test of legality legitimacy and necessity

C The requirement by the Court mandated Centiplex to remove the impugned

information from the first page of search result First it does not contravene the right to

expression enshrined in Article 19 of the UDHR Herein firstly the restriction doesnt

impose filtering or prior restraint secondly it does not create a Chilling effect Second the

-MEMORANDUM for theRESPONDENT-

right to privacy guaranteed under Article 12 is violated as it has a superseding effect on

Applicants right guaranteed under Article 19 In any event these measures are valid

limitations under Article 29(2) of the UDHR They satisfy the three-tier test of legality

legitimacy and necessity

D The requirement under the 2013 Search Privacy Act is consistent with the UDHR

First the requirement does not contravene right to privacy enshrined in Article 12 of the

UDHRItexemplifies how in certain circumstances the right to privacy outweighs the right

to freedom of expression Second it does not contravene Article 19 as it complies with the

three-tier test under Article 29(2) The restriction is prescribed by law as it is made under the

authority of the SPA It is pursuant to the legitimate aim of protection of rights of others as

the Respondent possesses a reasonable expectation of privacy Further the restriction is

necessary in ademocratic society as the dissemination does not warrant to a debate of

general interest

ARGUMENTS

A THE DAMAGES IMPOSED ON THE APPLICANT ARE JUST FAIR AND

CONSISTENT WITH THE PROVISIONS OF THE UDHR

1 The courts finding imposed damages of 400000 MHD46 on the Applicant

Respondent submits that this requirement is consistent with the right to freedom of speech

and expression under Article 19 [I] right to property under Article 17 [II] and valid under

46 Compromis para16

-MEMORANDUM for theRESPONDENT-

Article 29(2) [III] Moreover the dissemination was privacy intrusive under Article 12

UDHR [IV]

I The requirement is not a restriction on Article 19 UDHR

2 Article 19 guarantees ldquothe right to freedom of opinion and expression hellip without

interferencehellipthrough any mediardquo47 Respondent submits that the impugned requirement

does not restrict the right to freedom of expression [a] and does not cause a chilling effect

[b]

a) The requirement does not restrict the freedom of expression

3 Notwithstanding the pressrsquo vital ldquowatchdogrdquo role48 journalists cannot be released

from their duty to obey the ordinary law on the basis that Article 19 of the UDHR affords

them protection49 In Stoll v Switzerland the ECtHR held that there is no lsquowholly

unrestricted freedom of expression even with respect to press reporting of matters of serious

public concernrsquo50 The Respondent emphasises the Courtrsquos sentiment that journalistic

ethics51 play a considerably important role lsquogiven the influence wielded by the media in

contemporary societyrsquo52 It is no excuse to say that Sangrsquos duty as a journalist compelled

47 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19 See also International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

48 Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government Ethics(The ANNALS of the American Academy of Political and Social Science1995 )

49Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

50Stoll (n 49) BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR 20 May 1999) 65

51 Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5 October 2013

52Stoll (n 49) 104

-MEMORANDUM for theRESPONDENT-

him to commit an unlawful act53 when in fact this duty could have been discharged through

legal and ethical means54

4 Moreover it is established that ldquonews broadcasting should be based on truthfulness

ensured by the appropriate means of verification and proof and impartiality in

presentation description and narrationrdquo55 Sang clearly did not follow these standards56

Having in mind that ldquoduties and responsibilities which accompany the exercise of the right

tofreedom of expression by media professionals assume special significance in situations

ofconflict and tensionrdquo57 it can be manifestly perceived that Rho had sent the voicemailonly

to let off some steam to his good friend Taur58 which proves prima faciethere was no such

situation prevailing and dissemination does not meet these standards

b) The impugned requirement does not cause a lsquoChilling effectrsquo

5 Ultimately the Respondent reiterates that there is no interference with the freedom

of the press59 Further the damages60 imposed upon Sang do not amount to a form of

censorship61 intended to discourage the press from expressing criticism62 Requirement to

53 Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt accessed 5 October 2013

54 Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013

55 Resolution 1003 (1993) on the ethics of journalism adopted by the Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

56 Compromis para13

57Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

58 Compromis para11

59Freedom of the Press lthttpwwwpuclorgfrom-archivesMediafreedom-presshtmgt accessed 9 October 210360 Compromis para 16

61 Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October 2013

62Stoll (n 49) 154

-MEMORANDUM for theRESPONDENT-

pay damages was merely to discourage journalist for adopting unlawful methods for

obtaining information63 protect right to privacy enshrined under Article 12 UDHR and

public order64 and is wholly proportionate in this instance The safeguard afforded by

freedom of speech in relation to journalistic reporting on issues of general interest is subject

to the journalistacting in good faith and in accordance with the ethics of journalism65

Regardless of the Applicantrsquos misguided beliefs and best intentions his profession is no

source of immunity or impunity66 the road to perdition is paved with bona-fide intentions

II The requirement does not restrict Article 17 UDHR

6 Sang had doubtlessly breached his lsquoduties and responsibilitiesrsquo67 the ethics of

journalism68 and did not act lsquoin good faithrsquo69Besides the information lsquodoes not bear on

matters of general importancersquo70 and its dissemination is an abuse of the pressrsquos ldquowatchdogrdquo

role71To enhance this contention reliance is placed upon three groundsFirst while earlier

63 Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-

codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

64 Public Order lthttpwwwusiporgguiding-principles-stabilization-and-reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October 2013

65Stoll (n 32) 103

66Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) International Court of Justice 14 February 2002

67The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

68BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20 May 1999)

69Pedersen (n 44)

70Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

71Warren(n 49)

-MEMORANDUM for theRESPONDENT-

decisions of the Strasbourg courts tend not to tolerate high damages awards72 none of them

involved the scale of character assassination like in this case73Second spousal abuse74 is a

serious allegation aimed at scandalising Rhorsquos reputation for negative publicity75 purposes

and third such an allegation does not contribute to public debate where there are no facts

substantiating the allegation76

7 Furthermore such an allegation is solely speculative and was coldly calculated to

inflict maximum damage to Rhorsquos reputation77 Rhorsquos loss must be seen in the context of

his negative publicity78 and its impact on his pecuniary loss arising from the protest79 In

addition to that the grief over loss of reputation and honour which was clearly compounded

by the tasteless spousal abuse allegations80 Rho has absolute right to ask for damages since

his right to privacy is in issue and since ldquothe possibility of taking an action under civil law

should be guaranteed to enable a victim to claim possible damages for invasion of

privacyrdquo81 Furthermore the damages are reasonable and does not violate right to enjoyment

of property of the Applicant

72Jersild v Denmark App no 159808 (ECHR 23 September 1994)

73Clarification 10

74Domestic Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt accessed 6 October 2013

75 What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October 2013

76 Compromis para12

77 Compromis para13

78 Clarification 10

79 Compromis para9

80Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June 2007)

81 Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary Assembly of Council of Europe 26 July 1998 Article 14(i)

-MEMORANDUM for theRESPONDENT-

III In any event the requirement is permissible under Article 29(2) UDHR

a) The requirement is prescribed by law

8 Imposing damages on Sang for breach of the Wiretap Act82 is a justified interference

with his freedom of expression The interference in question is validly provided by law and

serves to protect an individualrsquos right to protection from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR

b) The requirement is in pursuance of legitimate aims

9 The ECtHR in Handyside v United Kingdom83 acknowledged that lsquostate authorities

are in principle in a better position than the international judge to give an opinion on the

exact content of these requirements as well as on the necessity of a restriction of a

penaltyrsquo84 Whether a restriction is necessary in the circumstances is therefore an inquiry

based on the facts and circumstances prevailing in the country concerned which the national

authorities are in a better position to undertake85 For the foregoing reasons the requirement

is in pursuance of legitimate aims

c) The restriction is necessary in a democratic society

10 The thrust of the Mhugan courtrsquos reasoning in imposing damages on Sang was

directed at his dissemination of lsquounlawfully obtained materialrsquo86 ie Rhorsquos recorded

82 Compromis para14

83 App no 549372( ECHR 7 December 1976)

84Handyside(n 28) at [48] The Sunday Times (n 8) Joint Dissenting Opinion of Judges Wiarda Cremona Thor Vilhjalmsson Ryssdal Ganshof van der Meersch Sir Gerald Fitzmaurice Bindschedler-Robert Liesh and Matscher

85Case of Klass and Others v Germany App no 502971(EHRR 6 September 1978)

86 Compromis para16

-MEMORANDUM for theRESPONDENT-

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 6: Oxford Respondent

LIST OF AUTHORITIES

ARTICLES AND JOURNALS

Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government

Ethics(The ANNALS of the American Academy of Political and Social

Science1995 )

Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5

October 2013

Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt

accessed 5 October 2013

Law Media Definition of Media Law And Ethics lt httpmedia-

lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed

5 October 2013

Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October

2013

Manner of collection of personal information (principle four) lt

httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-

of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

-MEMORANDUM for theRESPONDENT-

Public Orderlthttpwwwusiporgguiding-principles-stabilization-and-

reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October

2013

Domestic

Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt

accessed 6 October 2013

What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-

publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October

2013

Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University

Press Cambridge 1992) 115

Electronic Privacy Information Centre lsquoData Retentionrsquolt

httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October

2013

Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

Susan Freiwald lsquoUncertain Privacy Communication Attributes After the

Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

Organisation for Economic Co-operation and Development lsquoOECD

Guidelines on the Protection of Privacy and Transborder Flows of Personal

Datarsquo

lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1

_ 1_100htmlgt accessed 3 October 2013

-MEMORANDUM for theRESPONDENT-

Electronic Privacy Information System lsquoRecords Computers and the Rights

of Citizens Report of the Secretarys Advisory Committee on Automated

Personal Data Systems July 1973rsquo

lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

Reasonable Expectation of Privacylthttplegal-

dictionarythefreedictionarycomReasonable+expectation+of+privacygt

accessed 9 October 2013

Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo

(1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData

Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56

Stanford Law Review 191

Legal protection for Journalistic Sourceslt

httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5

October 2013

Mark duezersquo What is journalismProfessional identity and ideology of

journalists reconsidered lthttpjousagepubcomcontent64442abstractgt

accessed 9 October 2013

BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt

httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16

September 2013

Privacy and freedom from state

intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-

-MEMORANDUM for theRESPONDENT-

from-state-intrusiongt accessed 9 October 2013

Freedom from suspicion Principles to protect freedom of expression and

privacy against mass surveillancelt

httpwwwarticle19orgresourcesphpresource37186enfreedom-from-

suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-

mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013

Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013

The substance of the right to effective judicial protection against violation of

social rights lt

httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt

accessed 8 October 2013

African Commission on Human and Peoplesrsquo Rights lsquoResolution on the

Adoption of the Declaration of Principles on Freedom of Expression in

Africa (2002)rsquo Res 62(XXXII)02 Principle XV

CASES OF THE AFRICAN COURT OF HUMAN AND PEOPLESrsquo

RIGHTS

Referred to in

Media Rights Agenda and Others v Nigeria Commnos 2 23

-MEMORANDUM for theRESPONDENT-

10593 1289413094 and 15296 (1998) (ACHPR)

Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

CASES OF THE EUROPEAN COURT OF HUMAN RIGHTS

Referred to in

Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR

20 May 1999) 65

Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20

May 1999)

Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

Jersild v Denmark App no 159808 (ECHR 23 September 1994)

Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June

2007)

Handyside v United Kingdom App no 549372( ECHR 7 December 1976)

-MEMORANDUM for theRESPONDENT-

Klass and Others v Germany App no 502971(EHRR 6 September 1978)

Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November

2004)

KU v Finland App no 287202 (ECtHR 2 March 2009

Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008)

Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

Worm v Austria (1997) 25 EHRR 454

Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

Silver and Others v United Kingdom Application no 594772 (25

March 1983)

The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November

1991)

Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

-MEMORANDUM for theRESPONDENT-

Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

Kruslin v France App no 1180185(ECHR 24 April 1990)

Huvig v France App No 1110584( ECHR 24 April 1990)

Burghartz v Switzerland (1994) 18 EHRR 101

Von Hannover v Germany (2005) 40 EHRR 1

Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002)

Nebraska Press Association v Stuart427 US 539 559 (1976)

PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001)

Peck v United Kingdom (2003) 36 EHRR 41

New York Times Co v Sullivan 376 US 254 (1964)

Lingens v Austria App no 981582 (ECtHR 8 July 1986)

Friedl v Austria 1522589 (ECHR 31 January 1995)

PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001)

Peck v United Kingdom (2003) 36 EHRR 41

Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR

18 January 2011)

-MEMORANDUM for theRESPONDENT-

X and Y v Netherlands App no 897880(ECHR 26 March 1985)

ETK v News Group Newspapers [2011] EWCA Civ 439

Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no

5422400

(ECtHR 12 December 2000)

Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902

(ECtHR

13 May 2003)

Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006)

Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR

28 March 1990)

HRH Princess of Wales v MGN Newspapers App no1306997 (ECtHR 11

December 2003)

Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July

2009)

-MEMORANDUM for theRESPONDENT-

Klass and Others v Germany (App no 502971)Application

No 502971(ECHR 6 September1978)

Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25

February 1992)

Plon(socieacuteteacute) v FranceApp no 5814800(ECHR 18 May 2004)

Worm v Austria (1997) 25 EHRR 454

X and Y v Netherlands App no897880(ECHR 26 March 1985)

Funke v France App no 1082884(ECHR 25 February 1993) Keegan v

Ireland (1994) 18 EHRR 342

Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

UNITED STATES

Referred to in

McIntyre v Ohio Elections Commission 514 US 334 (1995)

Buckley v Valeo424 US 1 (1976)

Branzburg v Hayes 408 US 665

-MEMORANDUM for theRESPONDENT-

OShea v Littleton 414 US 488 (1974)

Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

Laird v Tatum 408 US 1 (1972)

Meese v Keene 481 US 465 (1987)

Niemotko v Maryland 340 US 268 (1951)

Shuttleworth v Birmingham 394 US 147 (1969)

Frisby v Schultz 487 US 474 (1988)

Katz v United States 389 US 347 (1967)

Acrara v Cloud Books Inc478 US 697 (1986)

Alexander v US 509 US 544 (1993)

Gertz v Welch 418 US 323 (1974)

Time Inc v Firestone 424 US 448 (1976)

Bartnicki v Vopper532 US 514 (2001)

Hutchinson v Proxmire443 US 111 (1979)

Wolston v Readerrsquos Digest Association Inc443 US 157 (1979)

Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981)

-MEMORANDUM for theRESPONDENT-

Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987)

Cox v New Hampshire 312 US 569 (1941)

Freedman v Maryland 380 US 51 (1965)

Madsen v Womenrsquos Health CenterInc et al 512 US 753 (1994)

United States v OBrien 391 US 367 (1968)

Turner Broadcasting System Inc v FCC 512 US 622 (1994)

Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton

536 US 150 (2002)

Ward v Rock Against Racism 491 US 781 (1989)

Galella v Onassis 487 F 2d 986 (1973)

Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

Bartnicki v Vopper532 US 514 (2001)

R v Oakes [1986] 1 SCR 103

New York Times Co v United States 403 US 713

Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186

(1984)

-MEMORANDUM for theRESPONDENT-

HUMAN RIGHTS COMMITTEE

Referred to in

Aduayom Diasso and Dobou v Togo Communications Nos 4221990

4231990

and 4241990 UN Doc CCPRC51D4221990 4231990 and 4241990

(1996)

ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN

Doc CCPRC85D11802003 (2006) (UN Human Rights Committee)

ENGLISH CASES

Referred to

in

A v B and Anr[2002] EWCA Civ 337 (UK)

McKennitt v Ash [2007] 3 WLR 194

Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK)

D v L [2004] EMLR 1 (UK)

Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK)

Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK)

-MEMORANDUM for theRESPONDENT-

R v Broadcasting Standards Commission ex parte British Broadcasting

Corporation (Liberty intervening) [2000] 3 All ER 989 (UK)

R v Loveridge[2001] EWCA Crim 973 (UK)

INDIAN CASES

Referred to in

Zimbabwe

Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231

REGIONAL AND INTERNATIONAL INSTRUMENTS

African Charter on Human and Peoplesrsquo Rights (adopted 27 June

1981entered into force 21 October 1986) (1982) 21 ILM 58

American Convention on Human Rights (adopted 22 November

1969entered into force 18 July 1978)

European Convention on Human Rights (adopted 4 November 1950

entered into force 3 September 1953)

International Covenant on Civil and Political Rights (adopted 16

-MEMORANDUM for theRESPONDENT-

December 1966 entered into force 23 March 1976) 999 UNTS 171

Universal Declaration of Human Rights (adopted 10 December 1948

UNGA Res 217 A(III)

CONSTITUTION

The Constitution of United States of America 1788

The Constitution of Argentina 1853

The Constitution of Belgium 1831

The Constitution of Brazil 1988

The Constitution Act of Finland 2000

The Constitution of India 1950

STATUTES

MISCELLANEOUS

-MEMORANDUM for theRESPONDENT-

Resolution 1003 (1993) on the ethics of journalism adopted by the

Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

Case Concerning the Arrest Warrant of 11 April 2000 (Democratic

Republic of the Congo v Belgium) (Merits) International Court of Justice

14 February 2002

21

Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary

Assembly of Council of Europe 26 July 1998 Article 14(i)

25

STATEMENT OF RELEVANT FACTS

-MEMORANDUM for theRESPONDENT-

ECONOMIC SCENARIO IN MHUGAN

1 The respondent country Republic of Mhugan is a country which obtained

independence in 1959 and since then it has had a parliamentary form of government1 Its

economy has grown rapidly since the late twentieth century fueled by a combination of

information technology industries manufacturing and financial services2

SOCIAL STATUS OF RHO

2 BansitSangnont better known by his stage name Rho is a pop music singer-

songwriter in Mhugan3 Rho after his music video for his song ldquoPokeacutePokeacuterdquo in 2011 became

very successful and was known throughout the world In early 2013 rumors began to

surface that Rho has been physically andor emotionally abusive to his wife an allegation

that Rho has vehemently denied4

COMPANIES PROVIDING INFORMATION ON SEARCH QUERIES

3 Centiplex Corporation based in Mhugan is the leading Internet services company in

Mhugan5 It runs an Internet search engine More than 80 of all search queries in Mhugan

are conducted through Centiplex and the remaining being conducted through Google6

Dexian is a global information services company based in the United States7 Its core

business is collecting aggregating analyzing and disseminating information relating to

1 Compromis para 1

2 Ibid

3 Compromis para 2

4 Compromis para 3

5 Compromis para4

6 Ibid

7 Compromis para 5

-MEMORANDUM for theRESPONDENT-

individuals8 Dexian claims to have records for almost 500 million people although those

records vary widely in their scope completeness and correctness9 The particular methods

that Dexian uses to combine sources and build individual records are not publicly known

and Dexian claims such information to be a trade secret10

4 Centiplex is a Dexian client and both buys and sells data to Dexian11 Prior to the

2013 Search Privacy Act described below no law or regulation in Mhugan restricted a

search enginersquos ability to collect disclose or use information12

ALLEGATIONS IMPOSED ON THON SANG

5 Thon Sang maintains an active blog on the Centiplex platform in Mhugan13 The ad

revenue goes to the centiplex and is not shared with the bloggers themselves14Sang is

ldquocelebrity-obsessedrdquo and his news is dedicated to Mhuganian celebrities15Sang has blogged

about the rumors of Rho abusing his wife writing that ldquoif true people should boycott Rhorsquos

music in protestrdquo16 On May 1 2013 Sang posted a voicemail that Rho left for his friend

8 Ibid

9 Ibid

10 Ibid

11 Compromis para 6

12 Ibid

13 Compromis para 7

14 Ibid

15 Compromis para 8

16 Ibid

-MEMORANDUM for theRESPONDENT-

TaurAklamit17 In the voicemail someone identifying himself as ldquoBansitrdquo said that he was

ldquofurious with my wife for not being more obedientrdquo and that ldquoI need to give her a good

smacking to show her whorsquos in chargerdquo18 Sang wrote in his post that he got this recording

from someone who tried to get into Aklamitrsquos voicemail Sang also wrote ldquoso the rumors are

true Boycott Rho and donrsquot even think about dancing the PokeacutePokeacuterdquo 19

6 The next day Sang posted again to gain more popularity- ldquoMore evidence this time

from Rhorsquos web searches which include lsquohow to control your wifersquo and lsquowhipping

techniquesrsquordquo Sang was very anxious to acquire information regarding Rho and therefore he

purchased Rhorsquos profile from Dexian for 20000 MHD which is approximately 002 Euros

7 On May 4 Rho held a press conference with his wife at his side where he stated

that he left the recorded voicemail for his friend TaurAlkamit and he would never even

dream of striking his wife He called Sang and whoever had recorded the voicemail

ldquovicious unethical and unprofessional rumor mongersrdquo who were ldquocriminals who deserve

to be punishedrdquo while his wife was busy listening to him and did not utter a word at the

conference On May 5 Sang again posted a reply stating that he was disgruntled by Rhorsquos

explanations

8 Sang clarified that the source of the voicemail had explained to him how he or she

had come across the message20 The source had entered Aklamitrsquos number by mistake

Aklamit and the source apparently shared the same password because neither had ever 17 Compromis para 9

18 Ibid

19 Ibid

20 Compromis para13

-MEMORANDUM for theRESPONDENT-

changed it from the default password for the voicemail system ldquo123456rdquo Before the source

had realized the mistake heshe clicked on the first message and heard it21 Suspecting that

the ldquoBansitrdquo on the message was in fact Rho the source then realized that this mailbox was

not hishers The source downloaded the copy of the message and sent the copy to Sang but

asking him not to reveal hisher identity22

PROVISIONS OF WIRETAP ACT

9 Mhuganian law makes it illegal under the Wiretap Act to ldquointentionally intercept or

obtain unauthorized access to any telephone or electronic communications whether in

transit or in storage23rdquo The Wiretap Act further makes it illegal for ldquoany person to

disseminate the contents of a telephone or electronic communications that the person knows

to have been unlawfully intercepted or obtained under this Act24rdquo The Wiretap Act provides

for both civil and criminal penalties Among the civil penalties are statutory damages up to

1000000 MHD The portion of the Wiretap Act described here contains an exception for

anyone acting in an official government capacity25

The Wiretap Act defines ndash

a) ldquodirectly accessedrdquo to include both (1) a link that leads directly to the material and

(2) any link that from the surrounding context reasonably indicates that it will lead

21 Ibid

22 Ibid

23 Compromis para14

24 Ibid

25 Ibid

-MEMORANDUM for theRESPONDENT-

to the prohibited material and does in fact lead to such material regardless of how

many links it takes to reach the prohibited material26

b) A search engine can meet its obligations under such an order by de-indexing the

relevant web pages but such de-indexing is not required so long as the relevant web

pages do not appear on the first page of search results27

c) The order remains in force unless and until the court rules against the plaintiff on

the Wiretap Act claim (or an appellate court rules against the plaintiff on this claim)

or the case is otherwise dismissed If the plaintiff prevails on the claim and

continues to prevail through any appeals the order effectively becomes permanent28

d) The Act provides for both civil and criminal penalties for a violation of such a

search engine order with statutory damages of up to 10000 MHD per day of

violation for a negligent violation and up to 1000000 MHD per day for an

intentional violation Criminal penalties are only available for an intentional

violation29

10 On May 8 2013 Rho sued Sang under the Wiretap Act for knowingly disseminating

the contents of unlawfully obtained communications30 Rho immediately applied for a search

engine order under the Act against Centiplex which the court granted31 The court

26 Compromis para15

27 Ibid

28 Ibid

29 Ibid

30 Compromis para16

31 ibid

-MEMORANDUM for theRESPONDENT-

ultimately ruled that Sang had violated the Wiretap Act and awarded statutory damages to

Rho of 400000 MHD In so ruling the court found under Mhuganian law that while the

sourcersquos initial hearing of the voicemail message may have been accidental the subsequent

downloading of the message to hisher computer was intentional and unauthorized under the

Wiretap Act and that furthermore because Sang had recounted on his blog all of the

relevant facts about the circumstances under which the source had acquired the voicemail

message Sang had the knowledge required to be liable under the Act32

11 Centiplex was given the search engine order by the court for disseminating the

contents of the recorded voicemail under the wiretap act and centiplex immediately began to

comply with the order entered against it33 Centiplex made an appearance in Rhorsquos case

against Sang in order to challenge the validity of the search engine order but the court

upheld the order34

12 In the same lawsuit Rho also sued the unknown source of the recorded voicemail

message as a ldquoJohn Doe35rdquo Rho subpoenaed Sang for the identity of that person Sang filed

a motion with the court to quash the subpoena asserting a privilege to hide the identity of

his source36 The court denied the motion to quash as under Mhuganian law the court does

recognize a qualified privilege not to reveal sources but only to ldquoprofessional journalistsrdquo

32 ibid

33 Compromis para1617

34 Ibid

35 Compromis para18

36 Ibid

-MEMORANDUM for theRESPONDENT-

but Sang was not a professional journalist as he did not disseminate the information to the

public for the gain of livelihood as the revenue goes to the CentiplexHowever the court did

grant a stay of the subpoena

2013 SEARCH PRIVACY ACT

13 On May 15 2013 Mhugan enacted the Search Privacy Act which makes it unlawful

for a search engine to sell information about a personrsquos search queries without that personrsquos

consent37

a) For purposes of this Act a ldquosalerdquo is defined to be a ldquotransfer in exchange for

anything of valuerdquo

b) Information is considered to be information ldquoabout a personrsquos search queriesrdquo if

individual search queries are associated with ldquoany identifier including without

limitation a name address phone number email address government identification

number date of birth or IP addressrdquo

c) The Act does not apply to non-sale transfers of such information nor does it apply

to any subsequent transfers of the same information after an initial transfer by the

search engine whether or not those subsequent transfers are sales

d) The Act contains explicit exceptions for disclosures to law enforcement agencies

pursuant to a warrant subpoena or court order and disclosures incident to the

search enginersquos ordinary course of business

e) The Act provides for compensatory or statutory damages at the plaintiffrsquos election

as well as punitive damages for a ldquowillful violationrdquo

f) The Act is scheduled to become effective on May 1 201438

37 Compromis para19

38 ibid

-MEMORANDUM for theRESPONDENT-

14 On May 20 2013 Centiplex sued in Mhugan to have the Search Privacy Act

declared invalid under the laws and Constitution of Mhugan39 But the court held the search

privacy act to be valid40

15 All of the rulings described above were appealed to the Mhugan Supreme Court the

highest appellate court in Mhugan and the Mhugan Supreme Court dismissed all of the

appeals41

16 Sang and Centiplex have challenged all of the following in the Universal Court of

Human Rights42

a) the damages imposed on Sang for disseminating the recorded voicemail

b) the subpoena to Sang to disclose the source of the recorded voicemail

c) the order against Centiplex requiring that webpages that link to the recorded

voicemail including Sangrsquos blog posts never appear on the first page of search

results

d) the validity of the 2013 Search Privacy Act43

39 Compromis para 20

40 Ibid

41 Compromis para21

42 Compromis para 22

43 Ibid

-MEMORANDUM for theRESPONDENT-

17 No law domestic or international restricts either Sangrsquos or Centiplexrsquos standing to

bring these challenges44 Both Sangrsquos and Centiplexrsquos positions have been rejected on the

merits in the domestic courts of Mhugan and all appeals or other legal remedies within the

Mhuganian court system have been exhausted45

STATEMENT OF JURISDICTION

CASE CONCERNING RIGHTS AND OBLIGATIONS UNDER THE UDHR

SANG AND CENTIPLEX Applicants

v

44 Compromis para 23

45 Ibid

-MEMORANDUM for theRESPONDENT-

THE REPUBLIC OF MHUGAN Respondent

ldquoSang and Centiplex (the Applicants) and the Republic of Mhugan (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 Mhuganian means the

Universal Freedom of Expression Court has jurisdiction in this matterrdquo

IN THE UNIVERSAL FREEDOM OF EXPRESSION COURT

THE RESPONDENT MOST HUMBLY AND RESPECTFULLY SUBMITS TO THE

JURISDICTION OF THIS HONrsquoBLE COURT

QUESTIONSPRESENTED

THE FOLLOWING QUESTIONS HAVE BEEN PRESENTED BEFORE THE COURT

FOR ITS DETERMINATION

1 WHETHER THE DAMAGES IMPOSED ON THE APPLICANT ARE CONSISTENT

WITH THE PROVISIONS OF THE UDHR

-MEMORANDUM for theRESPONDENT-

2 WHETHER THE REQUIREMENT TO DISCLOSE THE SOURCE OF THE

RECORDED VOICEMAIL IS CONSISTENT WITH THE PROVISIONS OF THE

UDHR

3 WHETHER THE SECTION OF THE WIRETAP ACT THAT PROVIDES FOR A

SPECIAL PROVISIONAL REMEDY IS CONSISTENT WITH THE UDHR

4 WHETHER THE PROVISIONS OF THE 2013 SEARCH PRIVACY ACT ARE

CONSISTENT WITH THE UDHR

SUMMARYOF ARGUMENTS

A The courts finding imposed damages of 400000 MHD on the Applicant First the

requirement does not infringe the right to freedom of expression of the Applicant Herein

firstly Respondent submits that the impugned requirement does not restrict the right to

freedom of expression and secondly it does not cause a chilling effect Second property

rights under Article 17 are not infringed because the Applicant cannot enjoy his right by

violating ones right under Article 12 The allegation emphasised by the Applicant does not

contribute to public debate as there are no facts substantiating the allegation Third the

-MEMORANDUM for theRESPONDENT-

Respondent possess a reasonable expectation of privacy under Article 12 which has been

violated after the dissemination of the unauthorised information took place In any event the

restriction is permissible under Article 29(2) of the UDHR It is prescribedby law under the

Wiretap Act The situation in Mhugan shows that the Wiretap Act is clearly in pursuit of the

legitimate aims of serves to protect an individualrsquos right from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR The restriction is necessary in a

democratic society as it corresponds to a pressing social need and is proportionate to the

legitimate aims

B The requirement by the court has mandated the Applicant to disclose the identity of

the source of the voicemail and it does not contravene the rights to freedom of expression

enshrined in Article 19 of the UDHR Herein firstly Article 19 does not include the right to

anonymity secondly it does not cause a chilling effect and finally the requirement does

not constitute prior restraint

Further the requirement does notcontravene the right to privacy guaranteed under Article 12

of the UDHR because there is no actual subjective expectation of privacy which is

objectively reasonable Finally theright to remedy enshrined in Article 8 of the UDHR has

not been violated because the Respondent has a right to effective remedy which is possible

only when the Applicant will disclose the name of the source of the information that

infiltrated the voicemailIn any event these measures are valid limitations under Article

29(2) of the UDHR Theysatisfy the three-tiered test of legality legitimacy and necessity

C The requirement by the Court mandated Centiplex to remove the impugned

information from the first page of search result First it does not contravene the right to

expression enshrined in Article 19 of the UDHR Herein firstly the restriction doesnt

impose filtering or prior restraint secondly it does not create a Chilling effect Second the

-MEMORANDUM for theRESPONDENT-

right to privacy guaranteed under Article 12 is violated as it has a superseding effect on

Applicants right guaranteed under Article 19 In any event these measures are valid

limitations under Article 29(2) of the UDHR They satisfy the three-tier test of legality

legitimacy and necessity

D The requirement under the 2013 Search Privacy Act is consistent with the UDHR

First the requirement does not contravene right to privacy enshrined in Article 12 of the

UDHRItexemplifies how in certain circumstances the right to privacy outweighs the right

to freedom of expression Second it does not contravene Article 19 as it complies with the

three-tier test under Article 29(2) The restriction is prescribed by law as it is made under the

authority of the SPA It is pursuant to the legitimate aim of protection of rights of others as

the Respondent possesses a reasonable expectation of privacy Further the restriction is

necessary in ademocratic society as the dissemination does not warrant to a debate of

general interest

ARGUMENTS

A THE DAMAGES IMPOSED ON THE APPLICANT ARE JUST FAIR AND

CONSISTENT WITH THE PROVISIONS OF THE UDHR

1 The courts finding imposed damages of 400000 MHD46 on the Applicant

Respondent submits that this requirement is consistent with the right to freedom of speech

and expression under Article 19 [I] right to property under Article 17 [II] and valid under

46 Compromis para16

-MEMORANDUM for theRESPONDENT-

Article 29(2) [III] Moreover the dissemination was privacy intrusive under Article 12

UDHR [IV]

I The requirement is not a restriction on Article 19 UDHR

2 Article 19 guarantees ldquothe right to freedom of opinion and expression hellip without

interferencehellipthrough any mediardquo47 Respondent submits that the impugned requirement

does not restrict the right to freedom of expression [a] and does not cause a chilling effect

[b]

a) The requirement does not restrict the freedom of expression

3 Notwithstanding the pressrsquo vital ldquowatchdogrdquo role48 journalists cannot be released

from their duty to obey the ordinary law on the basis that Article 19 of the UDHR affords

them protection49 In Stoll v Switzerland the ECtHR held that there is no lsquowholly

unrestricted freedom of expression even with respect to press reporting of matters of serious

public concernrsquo50 The Respondent emphasises the Courtrsquos sentiment that journalistic

ethics51 play a considerably important role lsquogiven the influence wielded by the media in

contemporary societyrsquo52 It is no excuse to say that Sangrsquos duty as a journalist compelled

47 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19 See also International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

48 Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government Ethics(The ANNALS of the American Academy of Political and Social Science1995 )

49Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

50Stoll (n 49) BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR 20 May 1999) 65

51 Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5 October 2013

52Stoll (n 49) 104

-MEMORANDUM for theRESPONDENT-

him to commit an unlawful act53 when in fact this duty could have been discharged through

legal and ethical means54

4 Moreover it is established that ldquonews broadcasting should be based on truthfulness

ensured by the appropriate means of verification and proof and impartiality in

presentation description and narrationrdquo55 Sang clearly did not follow these standards56

Having in mind that ldquoduties and responsibilities which accompany the exercise of the right

tofreedom of expression by media professionals assume special significance in situations

ofconflict and tensionrdquo57 it can be manifestly perceived that Rho had sent the voicemailonly

to let off some steam to his good friend Taur58 which proves prima faciethere was no such

situation prevailing and dissemination does not meet these standards

b) The impugned requirement does not cause a lsquoChilling effectrsquo

5 Ultimately the Respondent reiterates that there is no interference with the freedom

of the press59 Further the damages60 imposed upon Sang do not amount to a form of

censorship61 intended to discourage the press from expressing criticism62 Requirement to

53 Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt accessed 5 October 2013

54 Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013

55 Resolution 1003 (1993) on the ethics of journalism adopted by the Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

56 Compromis para13

57Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

58 Compromis para11

59Freedom of the Press lthttpwwwpuclorgfrom-archivesMediafreedom-presshtmgt accessed 9 October 210360 Compromis para 16

61 Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October 2013

62Stoll (n 49) 154

-MEMORANDUM for theRESPONDENT-

pay damages was merely to discourage journalist for adopting unlawful methods for

obtaining information63 protect right to privacy enshrined under Article 12 UDHR and

public order64 and is wholly proportionate in this instance The safeguard afforded by

freedom of speech in relation to journalistic reporting on issues of general interest is subject

to the journalistacting in good faith and in accordance with the ethics of journalism65

Regardless of the Applicantrsquos misguided beliefs and best intentions his profession is no

source of immunity or impunity66 the road to perdition is paved with bona-fide intentions

II The requirement does not restrict Article 17 UDHR

6 Sang had doubtlessly breached his lsquoduties and responsibilitiesrsquo67 the ethics of

journalism68 and did not act lsquoin good faithrsquo69Besides the information lsquodoes not bear on

matters of general importancersquo70 and its dissemination is an abuse of the pressrsquos ldquowatchdogrdquo

role71To enhance this contention reliance is placed upon three groundsFirst while earlier

63 Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-

codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

64 Public Order lthttpwwwusiporgguiding-principles-stabilization-and-reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October 2013

65Stoll (n 32) 103

66Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) International Court of Justice 14 February 2002

67The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

68BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20 May 1999)

69Pedersen (n 44)

70Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

71Warren(n 49)

-MEMORANDUM for theRESPONDENT-

decisions of the Strasbourg courts tend not to tolerate high damages awards72 none of them

involved the scale of character assassination like in this case73Second spousal abuse74 is a

serious allegation aimed at scandalising Rhorsquos reputation for negative publicity75 purposes

and third such an allegation does not contribute to public debate where there are no facts

substantiating the allegation76

7 Furthermore such an allegation is solely speculative and was coldly calculated to

inflict maximum damage to Rhorsquos reputation77 Rhorsquos loss must be seen in the context of

his negative publicity78 and its impact on his pecuniary loss arising from the protest79 In

addition to that the grief over loss of reputation and honour which was clearly compounded

by the tasteless spousal abuse allegations80 Rho has absolute right to ask for damages since

his right to privacy is in issue and since ldquothe possibility of taking an action under civil law

should be guaranteed to enable a victim to claim possible damages for invasion of

privacyrdquo81 Furthermore the damages are reasonable and does not violate right to enjoyment

of property of the Applicant

72Jersild v Denmark App no 159808 (ECHR 23 September 1994)

73Clarification 10

74Domestic Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt accessed 6 October 2013

75 What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October 2013

76 Compromis para12

77 Compromis para13

78 Clarification 10

79 Compromis para9

80Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June 2007)

81 Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary Assembly of Council of Europe 26 July 1998 Article 14(i)

-MEMORANDUM for theRESPONDENT-

III In any event the requirement is permissible under Article 29(2) UDHR

a) The requirement is prescribed by law

8 Imposing damages on Sang for breach of the Wiretap Act82 is a justified interference

with his freedom of expression The interference in question is validly provided by law and

serves to protect an individualrsquos right to protection from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR

b) The requirement is in pursuance of legitimate aims

9 The ECtHR in Handyside v United Kingdom83 acknowledged that lsquostate authorities

are in principle in a better position than the international judge to give an opinion on the

exact content of these requirements as well as on the necessity of a restriction of a

penaltyrsquo84 Whether a restriction is necessary in the circumstances is therefore an inquiry

based on the facts and circumstances prevailing in the country concerned which the national

authorities are in a better position to undertake85 For the foregoing reasons the requirement

is in pursuance of legitimate aims

c) The restriction is necessary in a democratic society

10 The thrust of the Mhugan courtrsquos reasoning in imposing damages on Sang was

directed at his dissemination of lsquounlawfully obtained materialrsquo86 ie Rhorsquos recorded

82 Compromis para14

83 App no 549372( ECHR 7 December 1976)

84Handyside(n 28) at [48] The Sunday Times (n 8) Joint Dissenting Opinion of Judges Wiarda Cremona Thor Vilhjalmsson Ryssdal Ganshof van der Meersch Sir Gerald Fitzmaurice Bindschedler-Robert Liesh and Matscher

85Case of Klass and Others v Germany App no 502971(EHRR 6 September 1978)

86 Compromis para16

-MEMORANDUM for theRESPONDENT-

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 7: Oxford Respondent

Public Orderlthttpwwwusiporgguiding-principles-stabilization-and-

reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October

2013

Domestic

Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt

accessed 6 October 2013

What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-

publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October

2013

Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University

Press Cambridge 1992) 115

Electronic Privacy Information Centre lsquoData Retentionrsquolt

httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October

2013

Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

Susan Freiwald lsquoUncertain Privacy Communication Attributes After the

Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

Organisation for Economic Co-operation and Development lsquoOECD

Guidelines on the Protection of Privacy and Transborder Flows of Personal

Datarsquo

lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1

_ 1_100htmlgt accessed 3 October 2013

-MEMORANDUM for theRESPONDENT-

Electronic Privacy Information System lsquoRecords Computers and the Rights

of Citizens Report of the Secretarys Advisory Committee on Automated

Personal Data Systems July 1973rsquo

lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

Reasonable Expectation of Privacylthttplegal-

dictionarythefreedictionarycomReasonable+expectation+of+privacygt

accessed 9 October 2013

Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo

(1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData

Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56

Stanford Law Review 191

Legal protection for Journalistic Sourceslt

httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5

October 2013

Mark duezersquo What is journalismProfessional identity and ideology of

journalists reconsidered lthttpjousagepubcomcontent64442abstractgt

accessed 9 October 2013

BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt

httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16

September 2013

Privacy and freedom from state

intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-

-MEMORANDUM for theRESPONDENT-

from-state-intrusiongt accessed 9 October 2013

Freedom from suspicion Principles to protect freedom of expression and

privacy against mass surveillancelt

httpwwwarticle19orgresourcesphpresource37186enfreedom-from-

suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-

mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013

Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013

The substance of the right to effective judicial protection against violation of

social rights lt

httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt

accessed 8 October 2013

African Commission on Human and Peoplesrsquo Rights lsquoResolution on the

Adoption of the Declaration of Principles on Freedom of Expression in

Africa (2002)rsquo Res 62(XXXII)02 Principle XV

CASES OF THE AFRICAN COURT OF HUMAN AND PEOPLESrsquo

RIGHTS

Referred to in

Media Rights Agenda and Others v Nigeria Commnos 2 23

-MEMORANDUM for theRESPONDENT-

10593 1289413094 and 15296 (1998) (ACHPR)

Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

CASES OF THE EUROPEAN COURT OF HUMAN RIGHTS

Referred to in

Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR

20 May 1999) 65

Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20

May 1999)

Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

Jersild v Denmark App no 159808 (ECHR 23 September 1994)

Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June

2007)

Handyside v United Kingdom App no 549372( ECHR 7 December 1976)

-MEMORANDUM for theRESPONDENT-

Klass and Others v Germany App no 502971(EHRR 6 September 1978)

Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November

2004)

KU v Finland App no 287202 (ECtHR 2 March 2009

Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008)

Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

Worm v Austria (1997) 25 EHRR 454

Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

Silver and Others v United Kingdom Application no 594772 (25

March 1983)

The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November

1991)

Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

-MEMORANDUM for theRESPONDENT-

Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

Kruslin v France App no 1180185(ECHR 24 April 1990)

Huvig v France App No 1110584( ECHR 24 April 1990)

Burghartz v Switzerland (1994) 18 EHRR 101

Von Hannover v Germany (2005) 40 EHRR 1

Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002)

Nebraska Press Association v Stuart427 US 539 559 (1976)

PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001)

Peck v United Kingdom (2003) 36 EHRR 41

New York Times Co v Sullivan 376 US 254 (1964)

Lingens v Austria App no 981582 (ECtHR 8 July 1986)

Friedl v Austria 1522589 (ECHR 31 January 1995)

PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001)

Peck v United Kingdom (2003) 36 EHRR 41

Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR

18 January 2011)

-MEMORANDUM for theRESPONDENT-

X and Y v Netherlands App no 897880(ECHR 26 March 1985)

ETK v News Group Newspapers [2011] EWCA Civ 439

Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no

5422400

(ECtHR 12 December 2000)

Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902

(ECtHR

13 May 2003)

Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006)

Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR

28 March 1990)

HRH Princess of Wales v MGN Newspapers App no1306997 (ECtHR 11

December 2003)

Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July

2009)

-MEMORANDUM for theRESPONDENT-

Klass and Others v Germany (App no 502971)Application

No 502971(ECHR 6 September1978)

Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25

February 1992)

Plon(socieacuteteacute) v FranceApp no 5814800(ECHR 18 May 2004)

Worm v Austria (1997) 25 EHRR 454

X and Y v Netherlands App no897880(ECHR 26 March 1985)

Funke v France App no 1082884(ECHR 25 February 1993) Keegan v

Ireland (1994) 18 EHRR 342

Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

UNITED STATES

Referred to in

McIntyre v Ohio Elections Commission 514 US 334 (1995)

Buckley v Valeo424 US 1 (1976)

Branzburg v Hayes 408 US 665

-MEMORANDUM for theRESPONDENT-

OShea v Littleton 414 US 488 (1974)

Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

Laird v Tatum 408 US 1 (1972)

Meese v Keene 481 US 465 (1987)

Niemotko v Maryland 340 US 268 (1951)

Shuttleworth v Birmingham 394 US 147 (1969)

Frisby v Schultz 487 US 474 (1988)

Katz v United States 389 US 347 (1967)

Acrara v Cloud Books Inc478 US 697 (1986)

Alexander v US 509 US 544 (1993)

Gertz v Welch 418 US 323 (1974)

Time Inc v Firestone 424 US 448 (1976)

Bartnicki v Vopper532 US 514 (2001)

Hutchinson v Proxmire443 US 111 (1979)

Wolston v Readerrsquos Digest Association Inc443 US 157 (1979)

Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981)

-MEMORANDUM for theRESPONDENT-

Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987)

Cox v New Hampshire 312 US 569 (1941)

Freedman v Maryland 380 US 51 (1965)

Madsen v Womenrsquos Health CenterInc et al 512 US 753 (1994)

United States v OBrien 391 US 367 (1968)

Turner Broadcasting System Inc v FCC 512 US 622 (1994)

Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton

536 US 150 (2002)

Ward v Rock Against Racism 491 US 781 (1989)

Galella v Onassis 487 F 2d 986 (1973)

Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

Bartnicki v Vopper532 US 514 (2001)

R v Oakes [1986] 1 SCR 103

New York Times Co v United States 403 US 713

Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186

(1984)

-MEMORANDUM for theRESPONDENT-

HUMAN RIGHTS COMMITTEE

Referred to in

Aduayom Diasso and Dobou v Togo Communications Nos 4221990

4231990

and 4241990 UN Doc CCPRC51D4221990 4231990 and 4241990

(1996)

ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN

Doc CCPRC85D11802003 (2006) (UN Human Rights Committee)

ENGLISH CASES

Referred to

in

A v B and Anr[2002] EWCA Civ 337 (UK)

McKennitt v Ash [2007] 3 WLR 194

Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK)

D v L [2004] EMLR 1 (UK)

Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK)

Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK)

-MEMORANDUM for theRESPONDENT-

R v Broadcasting Standards Commission ex parte British Broadcasting

Corporation (Liberty intervening) [2000] 3 All ER 989 (UK)

R v Loveridge[2001] EWCA Crim 973 (UK)

INDIAN CASES

Referred to in

Zimbabwe

Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231

REGIONAL AND INTERNATIONAL INSTRUMENTS

African Charter on Human and Peoplesrsquo Rights (adopted 27 June

1981entered into force 21 October 1986) (1982) 21 ILM 58

American Convention on Human Rights (adopted 22 November

1969entered into force 18 July 1978)

European Convention on Human Rights (adopted 4 November 1950

entered into force 3 September 1953)

International Covenant on Civil and Political Rights (adopted 16

-MEMORANDUM for theRESPONDENT-

December 1966 entered into force 23 March 1976) 999 UNTS 171

Universal Declaration of Human Rights (adopted 10 December 1948

UNGA Res 217 A(III)

CONSTITUTION

The Constitution of United States of America 1788

The Constitution of Argentina 1853

The Constitution of Belgium 1831

The Constitution of Brazil 1988

The Constitution Act of Finland 2000

The Constitution of India 1950

STATUTES

MISCELLANEOUS

-MEMORANDUM for theRESPONDENT-

Resolution 1003 (1993) on the ethics of journalism adopted by the

Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

Case Concerning the Arrest Warrant of 11 April 2000 (Democratic

Republic of the Congo v Belgium) (Merits) International Court of Justice

14 February 2002

21

Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary

Assembly of Council of Europe 26 July 1998 Article 14(i)

25

STATEMENT OF RELEVANT FACTS

-MEMORANDUM for theRESPONDENT-

ECONOMIC SCENARIO IN MHUGAN

1 The respondent country Republic of Mhugan is a country which obtained

independence in 1959 and since then it has had a parliamentary form of government1 Its

economy has grown rapidly since the late twentieth century fueled by a combination of

information technology industries manufacturing and financial services2

SOCIAL STATUS OF RHO

2 BansitSangnont better known by his stage name Rho is a pop music singer-

songwriter in Mhugan3 Rho after his music video for his song ldquoPokeacutePokeacuterdquo in 2011 became

very successful and was known throughout the world In early 2013 rumors began to

surface that Rho has been physically andor emotionally abusive to his wife an allegation

that Rho has vehemently denied4

COMPANIES PROVIDING INFORMATION ON SEARCH QUERIES

3 Centiplex Corporation based in Mhugan is the leading Internet services company in

Mhugan5 It runs an Internet search engine More than 80 of all search queries in Mhugan

are conducted through Centiplex and the remaining being conducted through Google6

Dexian is a global information services company based in the United States7 Its core

business is collecting aggregating analyzing and disseminating information relating to

1 Compromis para 1

2 Ibid

3 Compromis para 2

4 Compromis para 3

5 Compromis para4

6 Ibid

7 Compromis para 5

-MEMORANDUM for theRESPONDENT-

individuals8 Dexian claims to have records for almost 500 million people although those

records vary widely in their scope completeness and correctness9 The particular methods

that Dexian uses to combine sources and build individual records are not publicly known

and Dexian claims such information to be a trade secret10

4 Centiplex is a Dexian client and both buys and sells data to Dexian11 Prior to the

2013 Search Privacy Act described below no law or regulation in Mhugan restricted a

search enginersquos ability to collect disclose or use information12

ALLEGATIONS IMPOSED ON THON SANG

5 Thon Sang maintains an active blog on the Centiplex platform in Mhugan13 The ad

revenue goes to the centiplex and is not shared with the bloggers themselves14Sang is

ldquocelebrity-obsessedrdquo and his news is dedicated to Mhuganian celebrities15Sang has blogged

about the rumors of Rho abusing his wife writing that ldquoif true people should boycott Rhorsquos

music in protestrdquo16 On May 1 2013 Sang posted a voicemail that Rho left for his friend

8 Ibid

9 Ibid

10 Ibid

11 Compromis para 6

12 Ibid

13 Compromis para 7

14 Ibid

15 Compromis para 8

16 Ibid

-MEMORANDUM for theRESPONDENT-

TaurAklamit17 In the voicemail someone identifying himself as ldquoBansitrdquo said that he was

ldquofurious with my wife for not being more obedientrdquo and that ldquoI need to give her a good

smacking to show her whorsquos in chargerdquo18 Sang wrote in his post that he got this recording

from someone who tried to get into Aklamitrsquos voicemail Sang also wrote ldquoso the rumors are

true Boycott Rho and donrsquot even think about dancing the PokeacutePokeacuterdquo 19

6 The next day Sang posted again to gain more popularity- ldquoMore evidence this time

from Rhorsquos web searches which include lsquohow to control your wifersquo and lsquowhipping

techniquesrsquordquo Sang was very anxious to acquire information regarding Rho and therefore he

purchased Rhorsquos profile from Dexian for 20000 MHD which is approximately 002 Euros

7 On May 4 Rho held a press conference with his wife at his side where he stated

that he left the recorded voicemail for his friend TaurAlkamit and he would never even

dream of striking his wife He called Sang and whoever had recorded the voicemail

ldquovicious unethical and unprofessional rumor mongersrdquo who were ldquocriminals who deserve

to be punishedrdquo while his wife was busy listening to him and did not utter a word at the

conference On May 5 Sang again posted a reply stating that he was disgruntled by Rhorsquos

explanations

8 Sang clarified that the source of the voicemail had explained to him how he or she

had come across the message20 The source had entered Aklamitrsquos number by mistake

Aklamit and the source apparently shared the same password because neither had ever 17 Compromis para 9

18 Ibid

19 Ibid

20 Compromis para13

-MEMORANDUM for theRESPONDENT-

changed it from the default password for the voicemail system ldquo123456rdquo Before the source

had realized the mistake heshe clicked on the first message and heard it21 Suspecting that

the ldquoBansitrdquo on the message was in fact Rho the source then realized that this mailbox was

not hishers The source downloaded the copy of the message and sent the copy to Sang but

asking him not to reveal hisher identity22

PROVISIONS OF WIRETAP ACT

9 Mhuganian law makes it illegal under the Wiretap Act to ldquointentionally intercept or

obtain unauthorized access to any telephone or electronic communications whether in

transit or in storage23rdquo The Wiretap Act further makes it illegal for ldquoany person to

disseminate the contents of a telephone or electronic communications that the person knows

to have been unlawfully intercepted or obtained under this Act24rdquo The Wiretap Act provides

for both civil and criminal penalties Among the civil penalties are statutory damages up to

1000000 MHD The portion of the Wiretap Act described here contains an exception for

anyone acting in an official government capacity25

The Wiretap Act defines ndash

a) ldquodirectly accessedrdquo to include both (1) a link that leads directly to the material and

(2) any link that from the surrounding context reasonably indicates that it will lead

21 Ibid

22 Ibid

23 Compromis para14

24 Ibid

25 Ibid

-MEMORANDUM for theRESPONDENT-

to the prohibited material and does in fact lead to such material regardless of how

many links it takes to reach the prohibited material26

b) A search engine can meet its obligations under such an order by de-indexing the

relevant web pages but such de-indexing is not required so long as the relevant web

pages do not appear on the first page of search results27

c) The order remains in force unless and until the court rules against the plaintiff on

the Wiretap Act claim (or an appellate court rules against the plaintiff on this claim)

or the case is otherwise dismissed If the plaintiff prevails on the claim and

continues to prevail through any appeals the order effectively becomes permanent28

d) The Act provides for both civil and criminal penalties for a violation of such a

search engine order with statutory damages of up to 10000 MHD per day of

violation for a negligent violation and up to 1000000 MHD per day for an

intentional violation Criminal penalties are only available for an intentional

violation29

10 On May 8 2013 Rho sued Sang under the Wiretap Act for knowingly disseminating

the contents of unlawfully obtained communications30 Rho immediately applied for a search

engine order under the Act against Centiplex which the court granted31 The court

26 Compromis para15

27 Ibid

28 Ibid

29 Ibid

30 Compromis para16

31 ibid

-MEMORANDUM for theRESPONDENT-

ultimately ruled that Sang had violated the Wiretap Act and awarded statutory damages to

Rho of 400000 MHD In so ruling the court found under Mhuganian law that while the

sourcersquos initial hearing of the voicemail message may have been accidental the subsequent

downloading of the message to hisher computer was intentional and unauthorized under the

Wiretap Act and that furthermore because Sang had recounted on his blog all of the

relevant facts about the circumstances under which the source had acquired the voicemail

message Sang had the knowledge required to be liable under the Act32

11 Centiplex was given the search engine order by the court for disseminating the

contents of the recorded voicemail under the wiretap act and centiplex immediately began to

comply with the order entered against it33 Centiplex made an appearance in Rhorsquos case

against Sang in order to challenge the validity of the search engine order but the court

upheld the order34

12 In the same lawsuit Rho also sued the unknown source of the recorded voicemail

message as a ldquoJohn Doe35rdquo Rho subpoenaed Sang for the identity of that person Sang filed

a motion with the court to quash the subpoena asserting a privilege to hide the identity of

his source36 The court denied the motion to quash as under Mhuganian law the court does

recognize a qualified privilege not to reveal sources but only to ldquoprofessional journalistsrdquo

32 ibid

33 Compromis para1617

34 Ibid

35 Compromis para18

36 Ibid

-MEMORANDUM for theRESPONDENT-

but Sang was not a professional journalist as he did not disseminate the information to the

public for the gain of livelihood as the revenue goes to the CentiplexHowever the court did

grant a stay of the subpoena

2013 SEARCH PRIVACY ACT

13 On May 15 2013 Mhugan enacted the Search Privacy Act which makes it unlawful

for a search engine to sell information about a personrsquos search queries without that personrsquos

consent37

a) For purposes of this Act a ldquosalerdquo is defined to be a ldquotransfer in exchange for

anything of valuerdquo

b) Information is considered to be information ldquoabout a personrsquos search queriesrdquo if

individual search queries are associated with ldquoany identifier including without

limitation a name address phone number email address government identification

number date of birth or IP addressrdquo

c) The Act does not apply to non-sale transfers of such information nor does it apply

to any subsequent transfers of the same information after an initial transfer by the

search engine whether or not those subsequent transfers are sales

d) The Act contains explicit exceptions for disclosures to law enforcement agencies

pursuant to a warrant subpoena or court order and disclosures incident to the

search enginersquos ordinary course of business

e) The Act provides for compensatory or statutory damages at the plaintiffrsquos election

as well as punitive damages for a ldquowillful violationrdquo

f) The Act is scheduled to become effective on May 1 201438

37 Compromis para19

38 ibid

-MEMORANDUM for theRESPONDENT-

14 On May 20 2013 Centiplex sued in Mhugan to have the Search Privacy Act

declared invalid under the laws and Constitution of Mhugan39 But the court held the search

privacy act to be valid40

15 All of the rulings described above were appealed to the Mhugan Supreme Court the

highest appellate court in Mhugan and the Mhugan Supreme Court dismissed all of the

appeals41

16 Sang and Centiplex have challenged all of the following in the Universal Court of

Human Rights42

a) the damages imposed on Sang for disseminating the recorded voicemail

b) the subpoena to Sang to disclose the source of the recorded voicemail

c) the order against Centiplex requiring that webpages that link to the recorded

voicemail including Sangrsquos blog posts never appear on the first page of search

results

d) the validity of the 2013 Search Privacy Act43

39 Compromis para 20

40 Ibid

41 Compromis para21

42 Compromis para 22

43 Ibid

-MEMORANDUM for theRESPONDENT-

17 No law domestic or international restricts either Sangrsquos or Centiplexrsquos standing to

bring these challenges44 Both Sangrsquos and Centiplexrsquos positions have been rejected on the

merits in the domestic courts of Mhugan and all appeals or other legal remedies within the

Mhuganian court system have been exhausted45

STATEMENT OF JURISDICTION

CASE CONCERNING RIGHTS AND OBLIGATIONS UNDER THE UDHR

SANG AND CENTIPLEX Applicants

v

44 Compromis para 23

45 Ibid

-MEMORANDUM for theRESPONDENT-

THE REPUBLIC OF MHUGAN Respondent

ldquoSang and Centiplex (the Applicants) and the Republic of Mhugan (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 Mhuganian means the

Universal Freedom of Expression Court has jurisdiction in this matterrdquo

IN THE UNIVERSAL FREEDOM OF EXPRESSION COURT

THE RESPONDENT MOST HUMBLY AND RESPECTFULLY SUBMITS TO THE

JURISDICTION OF THIS HONrsquoBLE COURT

QUESTIONSPRESENTED

THE FOLLOWING QUESTIONS HAVE BEEN PRESENTED BEFORE THE COURT

FOR ITS DETERMINATION

1 WHETHER THE DAMAGES IMPOSED ON THE APPLICANT ARE CONSISTENT

WITH THE PROVISIONS OF THE UDHR

-MEMORANDUM for theRESPONDENT-

2 WHETHER THE REQUIREMENT TO DISCLOSE THE SOURCE OF THE

RECORDED VOICEMAIL IS CONSISTENT WITH THE PROVISIONS OF THE

UDHR

3 WHETHER THE SECTION OF THE WIRETAP ACT THAT PROVIDES FOR A

SPECIAL PROVISIONAL REMEDY IS CONSISTENT WITH THE UDHR

4 WHETHER THE PROVISIONS OF THE 2013 SEARCH PRIVACY ACT ARE

CONSISTENT WITH THE UDHR

SUMMARYOF ARGUMENTS

A The courts finding imposed damages of 400000 MHD on the Applicant First the

requirement does not infringe the right to freedom of expression of the Applicant Herein

firstly Respondent submits that the impugned requirement does not restrict the right to

freedom of expression and secondly it does not cause a chilling effect Second property

rights under Article 17 are not infringed because the Applicant cannot enjoy his right by

violating ones right under Article 12 The allegation emphasised by the Applicant does not

contribute to public debate as there are no facts substantiating the allegation Third the

-MEMORANDUM for theRESPONDENT-

Respondent possess a reasonable expectation of privacy under Article 12 which has been

violated after the dissemination of the unauthorised information took place In any event the

restriction is permissible under Article 29(2) of the UDHR It is prescribedby law under the

Wiretap Act The situation in Mhugan shows that the Wiretap Act is clearly in pursuit of the

legitimate aims of serves to protect an individualrsquos right from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR The restriction is necessary in a

democratic society as it corresponds to a pressing social need and is proportionate to the

legitimate aims

B The requirement by the court has mandated the Applicant to disclose the identity of

the source of the voicemail and it does not contravene the rights to freedom of expression

enshrined in Article 19 of the UDHR Herein firstly Article 19 does not include the right to

anonymity secondly it does not cause a chilling effect and finally the requirement does

not constitute prior restraint

Further the requirement does notcontravene the right to privacy guaranteed under Article 12

of the UDHR because there is no actual subjective expectation of privacy which is

objectively reasonable Finally theright to remedy enshrined in Article 8 of the UDHR has

not been violated because the Respondent has a right to effective remedy which is possible

only when the Applicant will disclose the name of the source of the information that

infiltrated the voicemailIn any event these measures are valid limitations under Article

29(2) of the UDHR Theysatisfy the three-tiered test of legality legitimacy and necessity

C The requirement by the Court mandated Centiplex to remove the impugned

information from the first page of search result First it does not contravene the right to

expression enshrined in Article 19 of the UDHR Herein firstly the restriction doesnt

impose filtering or prior restraint secondly it does not create a Chilling effect Second the

-MEMORANDUM for theRESPONDENT-

right to privacy guaranteed under Article 12 is violated as it has a superseding effect on

Applicants right guaranteed under Article 19 In any event these measures are valid

limitations under Article 29(2) of the UDHR They satisfy the three-tier test of legality

legitimacy and necessity

D The requirement under the 2013 Search Privacy Act is consistent with the UDHR

First the requirement does not contravene right to privacy enshrined in Article 12 of the

UDHRItexemplifies how in certain circumstances the right to privacy outweighs the right

to freedom of expression Second it does not contravene Article 19 as it complies with the

three-tier test under Article 29(2) The restriction is prescribed by law as it is made under the

authority of the SPA It is pursuant to the legitimate aim of protection of rights of others as

the Respondent possesses a reasonable expectation of privacy Further the restriction is

necessary in ademocratic society as the dissemination does not warrant to a debate of

general interest

ARGUMENTS

A THE DAMAGES IMPOSED ON THE APPLICANT ARE JUST FAIR AND

CONSISTENT WITH THE PROVISIONS OF THE UDHR

1 The courts finding imposed damages of 400000 MHD46 on the Applicant

Respondent submits that this requirement is consistent with the right to freedom of speech

and expression under Article 19 [I] right to property under Article 17 [II] and valid under

46 Compromis para16

-MEMORANDUM for theRESPONDENT-

Article 29(2) [III] Moreover the dissemination was privacy intrusive under Article 12

UDHR [IV]

I The requirement is not a restriction on Article 19 UDHR

2 Article 19 guarantees ldquothe right to freedom of opinion and expression hellip without

interferencehellipthrough any mediardquo47 Respondent submits that the impugned requirement

does not restrict the right to freedom of expression [a] and does not cause a chilling effect

[b]

a) The requirement does not restrict the freedom of expression

3 Notwithstanding the pressrsquo vital ldquowatchdogrdquo role48 journalists cannot be released

from their duty to obey the ordinary law on the basis that Article 19 of the UDHR affords

them protection49 In Stoll v Switzerland the ECtHR held that there is no lsquowholly

unrestricted freedom of expression even with respect to press reporting of matters of serious

public concernrsquo50 The Respondent emphasises the Courtrsquos sentiment that journalistic

ethics51 play a considerably important role lsquogiven the influence wielded by the media in

contemporary societyrsquo52 It is no excuse to say that Sangrsquos duty as a journalist compelled

47 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19 See also International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

48 Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government Ethics(The ANNALS of the American Academy of Political and Social Science1995 )

49Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

50Stoll (n 49) BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR 20 May 1999) 65

51 Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5 October 2013

52Stoll (n 49) 104

-MEMORANDUM for theRESPONDENT-

him to commit an unlawful act53 when in fact this duty could have been discharged through

legal and ethical means54

4 Moreover it is established that ldquonews broadcasting should be based on truthfulness

ensured by the appropriate means of verification and proof and impartiality in

presentation description and narrationrdquo55 Sang clearly did not follow these standards56

Having in mind that ldquoduties and responsibilities which accompany the exercise of the right

tofreedom of expression by media professionals assume special significance in situations

ofconflict and tensionrdquo57 it can be manifestly perceived that Rho had sent the voicemailonly

to let off some steam to his good friend Taur58 which proves prima faciethere was no such

situation prevailing and dissemination does not meet these standards

b) The impugned requirement does not cause a lsquoChilling effectrsquo

5 Ultimately the Respondent reiterates that there is no interference with the freedom

of the press59 Further the damages60 imposed upon Sang do not amount to a form of

censorship61 intended to discourage the press from expressing criticism62 Requirement to

53 Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt accessed 5 October 2013

54 Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013

55 Resolution 1003 (1993) on the ethics of journalism adopted by the Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

56 Compromis para13

57Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

58 Compromis para11

59Freedom of the Press lthttpwwwpuclorgfrom-archivesMediafreedom-presshtmgt accessed 9 October 210360 Compromis para 16

61 Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October 2013

62Stoll (n 49) 154

-MEMORANDUM for theRESPONDENT-

pay damages was merely to discourage journalist for adopting unlawful methods for

obtaining information63 protect right to privacy enshrined under Article 12 UDHR and

public order64 and is wholly proportionate in this instance The safeguard afforded by

freedom of speech in relation to journalistic reporting on issues of general interest is subject

to the journalistacting in good faith and in accordance with the ethics of journalism65

Regardless of the Applicantrsquos misguided beliefs and best intentions his profession is no

source of immunity or impunity66 the road to perdition is paved with bona-fide intentions

II The requirement does not restrict Article 17 UDHR

6 Sang had doubtlessly breached his lsquoduties and responsibilitiesrsquo67 the ethics of

journalism68 and did not act lsquoin good faithrsquo69Besides the information lsquodoes not bear on

matters of general importancersquo70 and its dissemination is an abuse of the pressrsquos ldquowatchdogrdquo

role71To enhance this contention reliance is placed upon three groundsFirst while earlier

63 Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-

codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

64 Public Order lthttpwwwusiporgguiding-principles-stabilization-and-reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October 2013

65Stoll (n 32) 103

66Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) International Court of Justice 14 February 2002

67The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

68BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20 May 1999)

69Pedersen (n 44)

70Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

71Warren(n 49)

-MEMORANDUM for theRESPONDENT-

decisions of the Strasbourg courts tend not to tolerate high damages awards72 none of them

involved the scale of character assassination like in this case73Second spousal abuse74 is a

serious allegation aimed at scandalising Rhorsquos reputation for negative publicity75 purposes

and third such an allegation does not contribute to public debate where there are no facts

substantiating the allegation76

7 Furthermore such an allegation is solely speculative and was coldly calculated to

inflict maximum damage to Rhorsquos reputation77 Rhorsquos loss must be seen in the context of

his negative publicity78 and its impact on his pecuniary loss arising from the protest79 In

addition to that the grief over loss of reputation and honour which was clearly compounded

by the tasteless spousal abuse allegations80 Rho has absolute right to ask for damages since

his right to privacy is in issue and since ldquothe possibility of taking an action under civil law

should be guaranteed to enable a victim to claim possible damages for invasion of

privacyrdquo81 Furthermore the damages are reasonable and does not violate right to enjoyment

of property of the Applicant

72Jersild v Denmark App no 159808 (ECHR 23 September 1994)

73Clarification 10

74Domestic Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt accessed 6 October 2013

75 What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October 2013

76 Compromis para12

77 Compromis para13

78 Clarification 10

79 Compromis para9

80Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June 2007)

81 Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary Assembly of Council of Europe 26 July 1998 Article 14(i)

-MEMORANDUM for theRESPONDENT-

III In any event the requirement is permissible under Article 29(2) UDHR

a) The requirement is prescribed by law

8 Imposing damages on Sang for breach of the Wiretap Act82 is a justified interference

with his freedom of expression The interference in question is validly provided by law and

serves to protect an individualrsquos right to protection from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR

b) The requirement is in pursuance of legitimate aims

9 The ECtHR in Handyside v United Kingdom83 acknowledged that lsquostate authorities

are in principle in a better position than the international judge to give an opinion on the

exact content of these requirements as well as on the necessity of a restriction of a

penaltyrsquo84 Whether a restriction is necessary in the circumstances is therefore an inquiry

based on the facts and circumstances prevailing in the country concerned which the national

authorities are in a better position to undertake85 For the foregoing reasons the requirement

is in pursuance of legitimate aims

c) The restriction is necessary in a democratic society

10 The thrust of the Mhugan courtrsquos reasoning in imposing damages on Sang was

directed at his dissemination of lsquounlawfully obtained materialrsquo86 ie Rhorsquos recorded

82 Compromis para14

83 App no 549372( ECHR 7 December 1976)

84Handyside(n 28) at [48] The Sunday Times (n 8) Joint Dissenting Opinion of Judges Wiarda Cremona Thor Vilhjalmsson Ryssdal Ganshof van der Meersch Sir Gerald Fitzmaurice Bindschedler-Robert Liesh and Matscher

85Case of Klass and Others v Germany App no 502971(EHRR 6 September 1978)

86 Compromis para16

-MEMORANDUM for theRESPONDENT-

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 8: Oxford Respondent

Electronic Privacy Information System lsquoRecords Computers and the Rights

of Citizens Report of the Secretarys Advisory Committee on Automated

Personal Data Systems July 1973rsquo

lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

Reasonable Expectation of Privacylthttplegal-

dictionarythefreedictionarycomReasonable+expectation+of+privacygt

accessed 9 October 2013

Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo

(1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData

Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56

Stanford Law Review 191

Legal protection for Journalistic Sourceslt

httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5

October 2013

Mark duezersquo What is journalismProfessional identity and ideology of

journalists reconsidered lthttpjousagepubcomcontent64442abstractgt

accessed 9 October 2013

BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt

httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16

September 2013

Privacy and freedom from state

intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-

-MEMORANDUM for theRESPONDENT-

from-state-intrusiongt accessed 9 October 2013

Freedom from suspicion Principles to protect freedom of expression and

privacy against mass surveillancelt

httpwwwarticle19orgresourcesphpresource37186enfreedom-from-

suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-

mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013

Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013

The substance of the right to effective judicial protection against violation of

social rights lt

httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt

accessed 8 October 2013

African Commission on Human and Peoplesrsquo Rights lsquoResolution on the

Adoption of the Declaration of Principles on Freedom of Expression in

Africa (2002)rsquo Res 62(XXXII)02 Principle XV

CASES OF THE AFRICAN COURT OF HUMAN AND PEOPLESrsquo

RIGHTS

Referred to in

Media Rights Agenda and Others v Nigeria Commnos 2 23

-MEMORANDUM for theRESPONDENT-

10593 1289413094 and 15296 (1998) (ACHPR)

Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

CASES OF THE EUROPEAN COURT OF HUMAN RIGHTS

Referred to in

Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR

20 May 1999) 65

Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20

May 1999)

Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

Jersild v Denmark App no 159808 (ECHR 23 September 1994)

Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June

2007)

Handyside v United Kingdom App no 549372( ECHR 7 December 1976)

-MEMORANDUM for theRESPONDENT-

Klass and Others v Germany App no 502971(EHRR 6 September 1978)

Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November

2004)

KU v Finland App no 287202 (ECtHR 2 March 2009

Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008)

Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

Worm v Austria (1997) 25 EHRR 454

Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

Silver and Others v United Kingdom Application no 594772 (25

March 1983)

The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November

1991)

Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

-MEMORANDUM for theRESPONDENT-

Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

Kruslin v France App no 1180185(ECHR 24 April 1990)

Huvig v France App No 1110584( ECHR 24 April 1990)

Burghartz v Switzerland (1994) 18 EHRR 101

Von Hannover v Germany (2005) 40 EHRR 1

Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002)

Nebraska Press Association v Stuart427 US 539 559 (1976)

PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001)

Peck v United Kingdom (2003) 36 EHRR 41

New York Times Co v Sullivan 376 US 254 (1964)

Lingens v Austria App no 981582 (ECtHR 8 July 1986)

Friedl v Austria 1522589 (ECHR 31 January 1995)

PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001)

Peck v United Kingdom (2003) 36 EHRR 41

Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR

18 January 2011)

-MEMORANDUM for theRESPONDENT-

X and Y v Netherlands App no 897880(ECHR 26 March 1985)

ETK v News Group Newspapers [2011] EWCA Civ 439

Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no

5422400

(ECtHR 12 December 2000)

Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902

(ECtHR

13 May 2003)

Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006)

Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR

28 March 1990)

HRH Princess of Wales v MGN Newspapers App no1306997 (ECtHR 11

December 2003)

Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July

2009)

-MEMORANDUM for theRESPONDENT-

Klass and Others v Germany (App no 502971)Application

No 502971(ECHR 6 September1978)

Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25

February 1992)

Plon(socieacuteteacute) v FranceApp no 5814800(ECHR 18 May 2004)

Worm v Austria (1997) 25 EHRR 454

X and Y v Netherlands App no897880(ECHR 26 March 1985)

Funke v France App no 1082884(ECHR 25 February 1993) Keegan v

Ireland (1994) 18 EHRR 342

Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

UNITED STATES

Referred to in

McIntyre v Ohio Elections Commission 514 US 334 (1995)

Buckley v Valeo424 US 1 (1976)

Branzburg v Hayes 408 US 665

-MEMORANDUM for theRESPONDENT-

OShea v Littleton 414 US 488 (1974)

Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

Laird v Tatum 408 US 1 (1972)

Meese v Keene 481 US 465 (1987)

Niemotko v Maryland 340 US 268 (1951)

Shuttleworth v Birmingham 394 US 147 (1969)

Frisby v Schultz 487 US 474 (1988)

Katz v United States 389 US 347 (1967)

Acrara v Cloud Books Inc478 US 697 (1986)

Alexander v US 509 US 544 (1993)

Gertz v Welch 418 US 323 (1974)

Time Inc v Firestone 424 US 448 (1976)

Bartnicki v Vopper532 US 514 (2001)

Hutchinson v Proxmire443 US 111 (1979)

Wolston v Readerrsquos Digest Association Inc443 US 157 (1979)

Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981)

-MEMORANDUM for theRESPONDENT-

Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987)

Cox v New Hampshire 312 US 569 (1941)

Freedman v Maryland 380 US 51 (1965)

Madsen v Womenrsquos Health CenterInc et al 512 US 753 (1994)

United States v OBrien 391 US 367 (1968)

Turner Broadcasting System Inc v FCC 512 US 622 (1994)

Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton

536 US 150 (2002)

Ward v Rock Against Racism 491 US 781 (1989)

Galella v Onassis 487 F 2d 986 (1973)

Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

Bartnicki v Vopper532 US 514 (2001)

R v Oakes [1986] 1 SCR 103

New York Times Co v United States 403 US 713

Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186

(1984)

-MEMORANDUM for theRESPONDENT-

HUMAN RIGHTS COMMITTEE

Referred to in

Aduayom Diasso and Dobou v Togo Communications Nos 4221990

4231990

and 4241990 UN Doc CCPRC51D4221990 4231990 and 4241990

(1996)

ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN

Doc CCPRC85D11802003 (2006) (UN Human Rights Committee)

ENGLISH CASES

Referred to

in

A v B and Anr[2002] EWCA Civ 337 (UK)

McKennitt v Ash [2007] 3 WLR 194

Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK)

D v L [2004] EMLR 1 (UK)

Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK)

Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK)

-MEMORANDUM for theRESPONDENT-

R v Broadcasting Standards Commission ex parte British Broadcasting

Corporation (Liberty intervening) [2000] 3 All ER 989 (UK)

R v Loveridge[2001] EWCA Crim 973 (UK)

INDIAN CASES

Referred to in

Zimbabwe

Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231

REGIONAL AND INTERNATIONAL INSTRUMENTS

African Charter on Human and Peoplesrsquo Rights (adopted 27 June

1981entered into force 21 October 1986) (1982) 21 ILM 58

American Convention on Human Rights (adopted 22 November

1969entered into force 18 July 1978)

European Convention on Human Rights (adopted 4 November 1950

entered into force 3 September 1953)

International Covenant on Civil and Political Rights (adopted 16

-MEMORANDUM for theRESPONDENT-

December 1966 entered into force 23 March 1976) 999 UNTS 171

Universal Declaration of Human Rights (adopted 10 December 1948

UNGA Res 217 A(III)

CONSTITUTION

The Constitution of United States of America 1788

The Constitution of Argentina 1853

The Constitution of Belgium 1831

The Constitution of Brazil 1988

The Constitution Act of Finland 2000

The Constitution of India 1950

STATUTES

MISCELLANEOUS

-MEMORANDUM for theRESPONDENT-

Resolution 1003 (1993) on the ethics of journalism adopted by the

Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

Case Concerning the Arrest Warrant of 11 April 2000 (Democratic

Republic of the Congo v Belgium) (Merits) International Court of Justice

14 February 2002

21

Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary

Assembly of Council of Europe 26 July 1998 Article 14(i)

25

STATEMENT OF RELEVANT FACTS

-MEMORANDUM for theRESPONDENT-

ECONOMIC SCENARIO IN MHUGAN

1 The respondent country Republic of Mhugan is a country which obtained

independence in 1959 and since then it has had a parliamentary form of government1 Its

economy has grown rapidly since the late twentieth century fueled by a combination of

information technology industries manufacturing and financial services2

SOCIAL STATUS OF RHO

2 BansitSangnont better known by his stage name Rho is a pop music singer-

songwriter in Mhugan3 Rho after his music video for his song ldquoPokeacutePokeacuterdquo in 2011 became

very successful and was known throughout the world In early 2013 rumors began to

surface that Rho has been physically andor emotionally abusive to his wife an allegation

that Rho has vehemently denied4

COMPANIES PROVIDING INFORMATION ON SEARCH QUERIES

3 Centiplex Corporation based in Mhugan is the leading Internet services company in

Mhugan5 It runs an Internet search engine More than 80 of all search queries in Mhugan

are conducted through Centiplex and the remaining being conducted through Google6

Dexian is a global information services company based in the United States7 Its core

business is collecting aggregating analyzing and disseminating information relating to

1 Compromis para 1

2 Ibid

3 Compromis para 2

4 Compromis para 3

5 Compromis para4

6 Ibid

7 Compromis para 5

-MEMORANDUM for theRESPONDENT-

individuals8 Dexian claims to have records for almost 500 million people although those

records vary widely in their scope completeness and correctness9 The particular methods

that Dexian uses to combine sources and build individual records are not publicly known

and Dexian claims such information to be a trade secret10

4 Centiplex is a Dexian client and both buys and sells data to Dexian11 Prior to the

2013 Search Privacy Act described below no law or regulation in Mhugan restricted a

search enginersquos ability to collect disclose or use information12

ALLEGATIONS IMPOSED ON THON SANG

5 Thon Sang maintains an active blog on the Centiplex platform in Mhugan13 The ad

revenue goes to the centiplex and is not shared with the bloggers themselves14Sang is

ldquocelebrity-obsessedrdquo and his news is dedicated to Mhuganian celebrities15Sang has blogged

about the rumors of Rho abusing his wife writing that ldquoif true people should boycott Rhorsquos

music in protestrdquo16 On May 1 2013 Sang posted a voicemail that Rho left for his friend

8 Ibid

9 Ibid

10 Ibid

11 Compromis para 6

12 Ibid

13 Compromis para 7

14 Ibid

15 Compromis para 8

16 Ibid

-MEMORANDUM for theRESPONDENT-

TaurAklamit17 In the voicemail someone identifying himself as ldquoBansitrdquo said that he was

ldquofurious with my wife for not being more obedientrdquo and that ldquoI need to give her a good

smacking to show her whorsquos in chargerdquo18 Sang wrote in his post that he got this recording

from someone who tried to get into Aklamitrsquos voicemail Sang also wrote ldquoso the rumors are

true Boycott Rho and donrsquot even think about dancing the PokeacutePokeacuterdquo 19

6 The next day Sang posted again to gain more popularity- ldquoMore evidence this time

from Rhorsquos web searches which include lsquohow to control your wifersquo and lsquowhipping

techniquesrsquordquo Sang was very anxious to acquire information regarding Rho and therefore he

purchased Rhorsquos profile from Dexian for 20000 MHD which is approximately 002 Euros

7 On May 4 Rho held a press conference with his wife at his side where he stated

that he left the recorded voicemail for his friend TaurAlkamit and he would never even

dream of striking his wife He called Sang and whoever had recorded the voicemail

ldquovicious unethical and unprofessional rumor mongersrdquo who were ldquocriminals who deserve

to be punishedrdquo while his wife was busy listening to him and did not utter a word at the

conference On May 5 Sang again posted a reply stating that he was disgruntled by Rhorsquos

explanations

8 Sang clarified that the source of the voicemail had explained to him how he or she

had come across the message20 The source had entered Aklamitrsquos number by mistake

Aklamit and the source apparently shared the same password because neither had ever 17 Compromis para 9

18 Ibid

19 Ibid

20 Compromis para13

-MEMORANDUM for theRESPONDENT-

changed it from the default password for the voicemail system ldquo123456rdquo Before the source

had realized the mistake heshe clicked on the first message and heard it21 Suspecting that

the ldquoBansitrdquo on the message was in fact Rho the source then realized that this mailbox was

not hishers The source downloaded the copy of the message and sent the copy to Sang but

asking him not to reveal hisher identity22

PROVISIONS OF WIRETAP ACT

9 Mhuganian law makes it illegal under the Wiretap Act to ldquointentionally intercept or

obtain unauthorized access to any telephone or electronic communications whether in

transit or in storage23rdquo The Wiretap Act further makes it illegal for ldquoany person to

disseminate the contents of a telephone or electronic communications that the person knows

to have been unlawfully intercepted or obtained under this Act24rdquo The Wiretap Act provides

for both civil and criminal penalties Among the civil penalties are statutory damages up to

1000000 MHD The portion of the Wiretap Act described here contains an exception for

anyone acting in an official government capacity25

The Wiretap Act defines ndash

a) ldquodirectly accessedrdquo to include both (1) a link that leads directly to the material and

(2) any link that from the surrounding context reasonably indicates that it will lead

21 Ibid

22 Ibid

23 Compromis para14

24 Ibid

25 Ibid

-MEMORANDUM for theRESPONDENT-

to the prohibited material and does in fact lead to such material regardless of how

many links it takes to reach the prohibited material26

b) A search engine can meet its obligations under such an order by de-indexing the

relevant web pages but such de-indexing is not required so long as the relevant web

pages do not appear on the first page of search results27

c) The order remains in force unless and until the court rules against the plaintiff on

the Wiretap Act claim (or an appellate court rules against the plaintiff on this claim)

or the case is otherwise dismissed If the plaintiff prevails on the claim and

continues to prevail through any appeals the order effectively becomes permanent28

d) The Act provides for both civil and criminal penalties for a violation of such a

search engine order with statutory damages of up to 10000 MHD per day of

violation for a negligent violation and up to 1000000 MHD per day for an

intentional violation Criminal penalties are only available for an intentional

violation29

10 On May 8 2013 Rho sued Sang under the Wiretap Act for knowingly disseminating

the contents of unlawfully obtained communications30 Rho immediately applied for a search

engine order under the Act against Centiplex which the court granted31 The court

26 Compromis para15

27 Ibid

28 Ibid

29 Ibid

30 Compromis para16

31 ibid

-MEMORANDUM for theRESPONDENT-

ultimately ruled that Sang had violated the Wiretap Act and awarded statutory damages to

Rho of 400000 MHD In so ruling the court found under Mhuganian law that while the

sourcersquos initial hearing of the voicemail message may have been accidental the subsequent

downloading of the message to hisher computer was intentional and unauthorized under the

Wiretap Act and that furthermore because Sang had recounted on his blog all of the

relevant facts about the circumstances under which the source had acquired the voicemail

message Sang had the knowledge required to be liable under the Act32

11 Centiplex was given the search engine order by the court for disseminating the

contents of the recorded voicemail under the wiretap act and centiplex immediately began to

comply with the order entered against it33 Centiplex made an appearance in Rhorsquos case

against Sang in order to challenge the validity of the search engine order but the court

upheld the order34

12 In the same lawsuit Rho also sued the unknown source of the recorded voicemail

message as a ldquoJohn Doe35rdquo Rho subpoenaed Sang for the identity of that person Sang filed

a motion with the court to quash the subpoena asserting a privilege to hide the identity of

his source36 The court denied the motion to quash as under Mhuganian law the court does

recognize a qualified privilege not to reveal sources but only to ldquoprofessional journalistsrdquo

32 ibid

33 Compromis para1617

34 Ibid

35 Compromis para18

36 Ibid

-MEMORANDUM for theRESPONDENT-

but Sang was not a professional journalist as he did not disseminate the information to the

public for the gain of livelihood as the revenue goes to the CentiplexHowever the court did

grant a stay of the subpoena

2013 SEARCH PRIVACY ACT

13 On May 15 2013 Mhugan enacted the Search Privacy Act which makes it unlawful

for a search engine to sell information about a personrsquos search queries without that personrsquos

consent37

a) For purposes of this Act a ldquosalerdquo is defined to be a ldquotransfer in exchange for

anything of valuerdquo

b) Information is considered to be information ldquoabout a personrsquos search queriesrdquo if

individual search queries are associated with ldquoany identifier including without

limitation a name address phone number email address government identification

number date of birth or IP addressrdquo

c) The Act does not apply to non-sale transfers of such information nor does it apply

to any subsequent transfers of the same information after an initial transfer by the

search engine whether or not those subsequent transfers are sales

d) The Act contains explicit exceptions for disclosures to law enforcement agencies

pursuant to a warrant subpoena or court order and disclosures incident to the

search enginersquos ordinary course of business

e) The Act provides for compensatory or statutory damages at the plaintiffrsquos election

as well as punitive damages for a ldquowillful violationrdquo

f) The Act is scheduled to become effective on May 1 201438

37 Compromis para19

38 ibid

-MEMORANDUM for theRESPONDENT-

14 On May 20 2013 Centiplex sued in Mhugan to have the Search Privacy Act

declared invalid under the laws and Constitution of Mhugan39 But the court held the search

privacy act to be valid40

15 All of the rulings described above were appealed to the Mhugan Supreme Court the

highest appellate court in Mhugan and the Mhugan Supreme Court dismissed all of the

appeals41

16 Sang and Centiplex have challenged all of the following in the Universal Court of

Human Rights42

a) the damages imposed on Sang for disseminating the recorded voicemail

b) the subpoena to Sang to disclose the source of the recorded voicemail

c) the order against Centiplex requiring that webpages that link to the recorded

voicemail including Sangrsquos blog posts never appear on the first page of search

results

d) the validity of the 2013 Search Privacy Act43

39 Compromis para 20

40 Ibid

41 Compromis para21

42 Compromis para 22

43 Ibid

-MEMORANDUM for theRESPONDENT-

17 No law domestic or international restricts either Sangrsquos or Centiplexrsquos standing to

bring these challenges44 Both Sangrsquos and Centiplexrsquos positions have been rejected on the

merits in the domestic courts of Mhugan and all appeals or other legal remedies within the

Mhuganian court system have been exhausted45

STATEMENT OF JURISDICTION

CASE CONCERNING RIGHTS AND OBLIGATIONS UNDER THE UDHR

SANG AND CENTIPLEX Applicants

v

44 Compromis para 23

45 Ibid

-MEMORANDUM for theRESPONDENT-

THE REPUBLIC OF MHUGAN Respondent

ldquoSang and Centiplex (the Applicants) and the Republic of Mhugan (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 Mhuganian means the

Universal Freedom of Expression Court has jurisdiction in this matterrdquo

IN THE UNIVERSAL FREEDOM OF EXPRESSION COURT

THE RESPONDENT MOST HUMBLY AND RESPECTFULLY SUBMITS TO THE

JURISDICTION OF THIS HONrsquoBLE COURT

QUESTIONSPRESENTED

THE FOLLOWING QUESTIONS HAVE BEEN PRESENTED BEFORE THE COURT

FOR ITS DETERMINATION

1 WHETHER THE DAMAGES IMPOSED ON THE APPLICANT ARE CONSISTENT

WITH THE PROVISIONS OF THE UDHR

-MEMORANDUM for theRESPONDENT-

2 WHETHER THE REQUIREMENT TO DISCLOSE THE SOURCE OF THE

RECORDED VOICEMAIL IS CONSISTENT WITH THE PROVISIONS OF THE

UDHR

3 WHETHER THE SECTION OF THE WIRETAP ACT THAT PROVIDES FOR A

SPECIAL PROVISIONAL REMEDY IS CONSISTENT WITH THE UDHR

4 WHETHER THE PROVISIONS OF THE 2013 SEARCH PRIVACY ACT ARE

CONSISTENT WITH THE UDHR

SUMMARYOF ARGUMENTS

A The courts finding imposed damages of 400000 MHD on the Applicant First the

requirement does not infringe the right to freedom of expression of the Applicant Herein

firstly Respondent submits that the impugned requirement does not restrict the right to

freedom of expression and secondly it does not cause a chilling effect Second property

rights under Article 17 are not infringed because the Applicant cannot enjoy his right by

violating ones right under Article 12 The allegation emphasised by the Applicant does not

contribute to public debate as there are no facts substantiating the allegation Third the

-MEMORANDUM for theRESPONDENT-

Respondent possess a reasonable expectation of privacy under Article 12 which has been

violated after the dissemination of the unauthorised information took place In any event the

restriction is permissible under Article 29(2) of the UDHR It is prescribedby law under the

Wiretap Act The situation in Mhugan shows that the Wiretap Act is clearly in pursuit of the

legitimate aims of serves to protect an individualrsquos right from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR The restriction is necessary in a

democratic society as it corresponds to a pressing social need and is proportionate to the

legitimate aims

B The requirement by the court has mandated the Applicant to disclose the identity of

the source of the voicemail and it does not contravene the rights to freedom of expression

enshrined in Article 19 of the UDHR Herein firstly Article 19 does not include the right to

anonymity secondly it does not cause a chilling effect and finally the requirement does

not constitute prior restraint

Further the requirement does notcontravene the right to privacy guaranteed under Article 12

of the UDHR because there is no actual subjective expectation of privacy which is

objectively reasonable Finally theright to remedy enshrined in Article 8 of the UDHR has

not been violated because the Respondent has a right to effective remedy which is possible

only when the Applicant will disclose the name of the source of the information that

infiltrated the voicemailIn any event these measures are valid limitations under Article

29(2) of the UDHR Theysatisfy the three-tiered test of legality legitimacy and necessity

C The requirement by the Court mandated Centiplex to remove the impugned

information from the first page of search result First it does not contravene the right to

expression enshrined in Article 19 of the UDHR Herein firstly the restriction doesnt

impose filtering or prior restraint secondly it does not create a Chilling effect Second the

-MEMORANDUM for theRESPONDENT-

right to privacy guaranteed under Article 12 is violated as it has a superseding effect on

Applicants right guaranteed under Article 19 In any event these measures are valid

limitations under Article 29(2) of the UDHR They satisfy the three-tier test of legality

legitimacy and necessity

D The requirement under the 2013 Search Privacy Act is consistent with the UDHR

First the requirement does not contravene right to privacy enshrined in Article 12 of the

UDHRItexemplifies how in certain circumstances the right to privacy outweighs the right

to freedom of expression Second it does not contravene Article 19 as it complies with the

three-tier test under Article 29(2) The restriction is prescribed by law as it is made under the

authority of the SPA It is pursuant to the legitimate aim of protection of rights of others as

the Respondent possesses a reasonable expectation of privacy Further the restriction is

necessary in ademocratic society as the dissemination does not warrant to a debate of

general interest

ARGUMENTS

A THE DAMAGES IMPOSED ON THE APPLICANT ARE JUST FAIR AND

CONSISTENT WITH THE PROVISIONS OF THE UDHR

1 The courts finding imposed damages of 400000 MHD46 on the Applicant

Respondent submits that this requirement is consistent with the right to freedom of speech

and expression under Article 19 [I] right to property under Article 17 [II] and valid under

46 Compromis para16

-MEMORANDUM for theRESPONDENT-

Article 29(2) [III] Moreover the dissemination was privacy intrusive under Article 12

UDHR [IV]

I The requirement is not a restriction on Article 19 UDHR

2 Article 19 guarantees ldquothe right to freedom of opinion and expression hellip without

interferencehellipthrough any mediardquo47 Respondent submits that the impugned requirement

does not restrict the right to freedom of expression [a] and does not cause a chilling effect

[b]

a) The requirement does not restrict the freedom of expression

3 Notwithstanding the pressrsquo vital ldquowatchdogrdquo role48 journalists cannot be released

from their duty to obey the ordinary law on the basis that Article 19 of the UDHR affords

them protection49 In Stoll v Switzerland the ECtHR held that there is no lsquowholly

unrestricted freedom of expression even with respect to press reporting of matters of serious

public concernrsquo50 The Respondent emphasises the Courtrsquos sentiment that journalistic

ethics51 play a considerably important role lsquogiven the influence wielded by the media in

contemporary societyrsquo52 It is no excuse to say that Sangrsquos duty as a journalist compelled

47 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19 See also International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

48 Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government Ethics(The ANNALS of the American Academy of Political and Social Science1995 )

49Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

50Stoll (n 49) BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR 20 May 1999) 65

51 Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5 October 2013

52Stoll (n 49) 104

-MEMORANDUM for theRESPONDENT-

him to commit an unlawful act53 when in fact this duty could have been discharged through

legal and ethical means54

4 Moreover it is established that ldquonews broadcasting should be based on truthfulness

ensured by the appropriate means of verification and proof and impartiality in

presentation description and narrationrdquo55 Sang clearly did not follow these standards56

Having in mind that ldquoduties and responsibilities which accompany the exercise of the right

tofreedom of expression by media professionals assume special significance in situations

ofconflict and tensionrdquo57 it can be manifestly perceived that Rho had sent the voicemailonly

to let off some steam to his good friend Taur58 which proves prima faciethere was no such

situation prevailing and dissemination does not meet these standards

b) The impugned requirement does not cause a lsquoChilling effectrsquo

5 Ultimately the Respondent reiterates that there is no interference with the freedom

of the press59 Further the damages60 imposed upon Sang do not amount to a form of

censorship61 intended to discourage the press from expressing criticism62 Requirement to

53 Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt accessed 5 October 2013

54 Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013

55 Resolution 1003 (1993) on the ethics of journalism adopted by the Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

56 Compromis para13

57Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

58 Compromis para11

59Freedom of the Press lthttpwwwpuclorgfrom-archivesMediafreedom-presshtmgt accessed 9 October 210360 Compromis para 16

61 Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October 2013

62Stoll (n 49) 154

-MEMORANDUM for theRESPONDENT-

pay damages was merely to discourage journalist for adopting unlawful methods for

obtaining information63 protect right to privacy enshrined under Article 12 UDHR and

public order64 and is wholly proportionate in this instance The safeguard afforded by

freedom of speech in relation to journalistic reporting on issues of general interest is subject

to the journalistacting in good faith and in accordance with the ethics of journalism65

Regardless of the Applicantrsquos misguided beliefs and best intentions his profession is no

source of immunity or impunity66 the road to perdition is paved with bona-fide intentions

II The requirement does not restrict Article 17 UDHR

6 Sang had doubtlessly breached his lsquoduties and responsibilitiesrsquo67 the ethics of

journalism68 and did not act lsquoin good faithrsquo69Besides the information lsquodoes not bear on

matters of general importancersquo70 and its dissemination is an abuse of the pressrsquos ldquowatchdogrdquo

role71To enhance this contention reliance is placed upon three groundsFirst while earlier

63 Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-

codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

64 Public Order lthttpwwwusiporgguiding-principles-stabilization-and-reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October 2013

65Stoll (n 32) 103

66Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) International Court of Justice 14 February 2002

67The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

68BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20 May 1999)

69Pedersen (n 44)

70Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

71Warren(n 49)

-MEMORANDUM for theRESPONDENT-

decisions of the Strasbourg courts tend not to tolerate high damages awards72 none of them

involved the scale of character assassination like in this case73Second spousal abuse74 is a

serious allegation aimed at scandalising Rhorsquos reputation for negative publicity75 purposes

and third such an allegation does not contribute to public debate where there are no facts

substantiating the allegation76

7 Furthermore such an allegation is solely speculative and was coldly calculated to

inflict maximum damage to Rhorsquos reputation77 Rhorsquos loss must be seen in the context of

his negative publicity78 and its impact on his pecuniary loss arising from the protest79 In

addition to that the grief over loss of reputation and honour which was clearly compounded

by the tasteless spousal abuse allegations80 Rho has absolute right to ask for damages since

his right to privacy is in issue and since ldquothe possibility of taking an action under civil law

should be guaranteed to enable a victim to claim possible damages for invasion of

privacyrdquo81 Furthermore the damages are reasonable and does not violate right to enjoyment

of property of the Applicant

72Jersild v Denmark App no 159808 (ECHR 23 September 1994)

73Clarification 10

74Domestic Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt accessed 6 October 2013

75 What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October 2013

76 Compromis para12

77 Compromis para13

78 Clarification 10

79 Compromis para9

80Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June 2007)

81 Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary Assembly of Council of Europe 26 July 1998 Article 14(i)

-MEMORANDUM for theRESPONDENT-

III In any event the requirement is permissible under Article 29(2) UDHR

a) The requirement is prescribed by law

8 Imposing damages on Sang for breach of the Wiretap Act82 is a justified interference

with his freedom of expression The interference in question is validly provided by law and

serves to protect an individualrsquos right to protection from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR

b) The requirement is in pursuance of legitimate aims

9 The ECtHR in Handyside v United Kingdom83 acknowledged that lsquostate authorities

are in principle in a better position than the international judge to give an opinion on the

exact content of these requirements as well as on the necessity of a restriction of a

penaltyrsquo84 Whether a restriction is necessary in the circumstances is therefore an inquiry

based on the facts and circumstances prevailing in the country concerned which the national

authorities are in a better position to undertake85 For the foregoing reasons the requirement

is in pursuance of legitimate aims

c) The restriction is necessary in a democratic society

10 The thrust of the Mhugan courtrsquos reasoning in imposing damages on Sang was

directed at his dissemination of lsquounlawfully obtained materialrsquo86 ie Rhorsquos recorded

82 Compromis para14

83 App no 549372( ECHR 7 December 1976)

84Handyside(n 28) at [48] The Sunday Times (n 8) Joint Dissenting Opinion of Judges Wiarda Cremona Thor Vilhjalmsson Ryssdal Ganshof van der Meersch Sir Gerald Fitzmaurice Bindschedler-Robert Liesh and Matscher

85Case of Klass and Others v Germany App no 502971(EHRR 6 September 1978)

86 Compromis para16

-MEMORANDUM for theRESPONDENT-

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 9: Oxford Respondent

from-state-intrusiongt accessed 9 October 2013

Freedom from suspicion Principles to protect freedom of expression and

privacy against mass surveillancelt

httpwwwarticle19orgresourcesphpresource37186enfreedom-from-

suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-

mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013

Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013

The substance of the right to effective judicial protection against violation of

social rights lt

httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt

accessed 8 October 2013

African Commission on Human and Peoplesrsquo Rights lsquoResolution on the

Adoption of the Declaration of Principles on Freedom of Expression in

Africa (2002)rsquo Res 62(XXXII)02 Principle XV

CASES OF THE AFRICAN COURT OF HUMAN AND PEOPLESrsquo

RIGHTS

Referred to in

Media Rights Agenda and Others v Nigeria Commnos 2 23

-MEMORANDUM for theRESPONDENT-

10593 1289413094 and 15296 (1998) (ACHPR)

Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

CASES OF THE EUROPEAN COURT OF HUMAN RIGHTS

Referred to in

Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR

20 May 1999) 65

Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20

May 1999)

Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

Jersild v Denmark App no 159808 (ECHR 23 September 1994)

Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June

2007)

Handyside v United Kingdom App no 549372( ECHR 7 December 1976)

-MEMORANDUM for theRESPONDENT-

Klass and Others v Germany App no 502971(EHRR 6 September 1978)

Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November

2004)

KU v Finland App no 287202 (ECtHR 2 March 2009

Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008)

Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

Worm v Austria (1997) 25 EHRR 454

Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

Silver and Others v United Kingdom Application no 594772 (25

March 1983)

The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November

1991)

Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

-MEMORANDUM for theRESPONDENT-

Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

Kruslin v France App no 1180185(ECHR 24 April 1990)

Huvig v France App No 1110584( ECHR 24 April 1990)

Burghartz v Switzerland (1994) 18 EHRR 101

Von Hannover v Germany (2005) 40 EHRR 1

Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002)

Nebraska Press Association v Stuart427 US 539 559 (1976)

PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001)

Peck v United Kingdom (2003) 36 EHRR 41

New York Times Co v Sullivan 376 US 254 (1964)

Lingens v Austria App no 981582 (ECtHR 8 July 1986)

Friedl v Austria 1522589 (ECHR 31 January 1995)

PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001)

Peck v United Kingdom (2003) 36 EHRR 41

Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR

18 January 2011)

-MEMORANDUM for theRESPONDENT-

X and Y v Netherlands App no 897880(ECHR 26 March 1985)

ETK v News Group Newspapers [2011] EWCA Civ 439

Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no

5422400

(ECtHR 12 December 2000)

Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902

(ECtHR

13 May 2003)

Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006)

Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR

28 March 1990)

HRH Princess of Wales v MGN Newspapers App no1306997 (ECtHR 11

December 2003)

Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July

2009)

-MEMORANDUM for theRESPONDENT-

Klass and Others v Germany (App no 502971)Application

No 502971(ECHR 6 September1978)

Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25

February 1992)

Plon(socieacuteteacute) v FranceApp no 5814800(ECHR 18 May 2004)

Worm v Austria (1997) 25 EHRR 454

X and Y v Netherlands App no897880(ECHR 26 March 1985)

Funke v France App no 1082884(ECHR 25 February 1993) Keegan v

Ireland (1994) 18 EHRR 342

Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

UNITED STATES

Referred to in

McIntyre v Ohio Elections Commission 514 US 334 (1995)

Buckley v Valeo424 US 1 (1976)

Branzburg v Hayes 408 US 665

-MEMORANDUM for theRESPONDENT-

OShea v Littleton 414 US 488 (1974)

Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

Laird v Tatum 408 US 1 (1972)

Meese v Keene 481 US 465 (1987)

Niemotko v Maryland 340 US 268 (1951)

Shuttleworth v Birmingham 394 US 147 (1969)

Frisby v Schultz 487 US 474 (1988)

Katz v United States 389 US 347 (1967)

Acrara v Cloud Books Inc478 US 697 (1986)

Alexander v US 509 US 544 (1993)

Gertz v Welch 418 US 323 (1974)

Time Inc v Firestone 424 US 448 (1976)

Bartnicki v Vopper532 US 514 (2001)

Hutchinson v Proxmire443 US 111 (1979)

Wolston v Readerrsquos Digest Association Inc443 US 157 (1979)

Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981)

-MEMORANDUM for theRESPONDENT-

Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987)

Cox v New Hampshire 312 US 569 (1941)

Freedman v Maryland 380 US 51 (1965)

Madsen v Womenrsquos Health CenterInc et al 512 US 753 (1994)

United States v OBrien 391 US 367 (1968)

Turner Broadcasting System Inc v FCC 512 US 622 (1994)

Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton

536 US 150 (2002)

Ward v Rock Against Racism 491 US 781 (1989)

Galella v Onassis 487 F 2d 986 (1973)

Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

Bartnicki v Vopper532 US 514 (2001)

R v Oakes [1986] 1 SCR 103

New York Times Co v United States 403 US 713

Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186

(1984)

-MEMORANDUM for theRESPONDENT-

HUMAN RIGHTS COMMITTEE

Referred to in

Aduayom Diasso and Dobou v Togo Communications Nos 4221990

4231990

and 4241990 UN Doc CCPRC51D4221990 4231990 and 4241990

(1996)

ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN

Doc CCPRC85D11802003 (2006) (UN Human Rights Committee)

ENGLISH CASES

Referred to

in

A v B and Anr[2002] EWCA Civ 337 (UK)

McKennitt v Ash [2007] 3 WLR 194

Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK)

D v L [2004] EMLR 1 (UK)

Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK)

Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK)

-MEMORANDUM for theRESPONDENT-

R v Broadcasting Standards Commission ex parte British Broadcasting

Corporation (Liberty intervening) [2000] 3 All ER 989 (UK)

R v Loveridge[2001] EWCA Crim 973 (UK)

INDIAN CASES

Referred to in

Zimbabwe

Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231

REGIONAL AND INTERNATIONAL INSTRUMENTS

African Charter on Human and Peoplesrsquo Rights (adopted 27 June

1981entered into force 21 October 1986) (1982) 21 ILM 58

American Convention on Human Rights (adopted 22 November

1969entered into force 18 July 1978)

European Convention on Human Rights (adopted 4 November 1950

entered into force 3 September 1953)

International Covenant on Civil and Political Rights (adopted 16

-MEMORANDUM for theRESPONDENT-

December 1966 entered into force 23 March 1976) 999 UNTS 171

Universal Declaration of Human Rights (adopted 10 December 1948

UNGA Res 217 A(III)

CONSTITUTION

The Constitution of United States of America 1788

The Constitution of Argentina 1853

The Constitution of Belgium 1831

The Constitution of Brazil 1988

The Constitution Act of Finland 2000

The Constitution of India 1950

STATUTES

MISCELLANEOUS

-MEMORANDUM for theRESPONDENT-

Resolution 1003 (1993) on the ethics of journalism adopted by the

Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

Case Concerning the Arrest Warrant of 11 April 2000 (Democratic

Republic of the Congo v Belgium) (Merits) International Court of Justice

14 February 2002

21

Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary

Assembly of Council of Europe 26 July 1998 Article 14(i)

25

STATEMENT OF RELEVANT FACTS

-MEMORANDUM for theRESPONDENT-

ECONOMIC SCENARIO IN MHUGAN

1 The respondent country Republic of Mhugan is a country which obtained

independence in 1959 and since then it has had a parliamentary form of government1 Its

economy has grown rapidly since the late twentieth century fueled by a combination of

information technology industries manufacturing and financial services2

SOCIAL STATUS OF RHO

2 BansitSangnont better known by his stage name Rho is a pop music singer-

songwriter in Mhugan3 Rho after his music video for his song ldquoPokeacutePokeacuterdquo in 2011 became

very successful and was known throughout the world In early 2013 rumors began to

surface that Rho has been physically andor emotionally abusive to his wife an allegation

that Rho has vehemently denied4

COMPANIES PROVIDING INFORMATION ON SEARCH QUERIES

3 Centiplex Corporation based in Mhugan is the leading Internet services company in

Mhugan5 It runs an Internet search engine More than 80 of all search queries in Mhugan

are conducted through Centiplex and the remaining being conducted through Google6

Dexian is a global information services company based in the United States7 Its core

business is collecting aggregating analyzing and disseminating information relating to

1 Compromis para 1

2 Ibid

3 Compromis para 2

4 Compromis para 3

5 Compromis para4

6 Ibid

7 Compromis para 5

-MEMORANDUM for theRESPONDENT-

individuals8 Dexian claims to have records for almost 500 million people although those

records vary widely in their scope completeness and correctness9 The particular methods

that Dexian uses to combine sources and build individual records are not publicly known

and Dexian claims such information to be a trade secret10

4 Centiplex is a Dexian client and both buys and sells data to Dexian11 Prior to the

2013 Search Privacy Act described below no law or regulation in Mhugan restricted a

search enginersquos ability to collect disclose or use information12

ALLEGATIONS IMPOSED ON THON SANG

5 Thon Sang maintains an active blog on the Centiplex platform in Mhugan13 The ad

revenue goes to the centiplex and is not shared with the bloggers themselves14Sang is

ldquocelebrity-obsessedrdquo and his news is dedicated to Mhuganian celebrities15Sang has blogged

about the rumors of Rho abusing his wife writing that ldquoif true people should boycott Rhorsquos

music in protestrdquo16 On May 1 2013 Sang posted a voicemail that Rho left for his friend

8 Ibid

9 Ibid

10 Ibid

11 Compromis para 6

12 Ibid

13 Compromis para 7

14 Ibid

15 Compromis para 8

16 Ibid

-MEMORANDUM for theRESPONDENT-

TaurAklamit17 In the voicemail someone identifying himself as ldquoBansitrdquo said that he was

ldquofurious with my wife for not being more obedientrdquo and that ldquoI need to give her a good

smacking to show her whorsquos in chargerdquo18 Sang wrote in his post that he got this recording

from someone who tried to get into Aklamitrsquos voicemail Sang also wrote ldquoso the rumors are

true Boycott Rho and donrsquot even think about dancing the PokeacutePokeacuterdquo 19

6 The next day Sang posted again to gain more popularity- ldquoMore evidence this time

from Rhorsquos web searches which include lsquohow to control your wifersquo and lsquowhipping

techniquesrsquordquo Sang was very anxious to acquire information regarding Rho and therefore he

purchased Rhorsquos profile from Dexian for 20000 MHD which is approximately 002 Euros

7 On May 4 Rho held a press conference with his wife at his side where he stated

that he left the recorded voicemail for his friend TaurAlkamit and he would never even

dream of striking his wife He called Sang and whoever had recorded the voicemail

ldquovicious unethical and unprofessional rumor mongersrdquo who were ldquocriminals who deserve

to be punishedrdquo while his wife was busy listening to him and did not utter a word at the

conference On May 5 Sang again posted a reply stating that he was disgruntled by Rhorsquos

explanations

8 Sang clarified that the source of the voicemail had explained to him how he or she

had come across the message20 The source had entered Aklamitrsquos number by mistake

Aklamit and the source apparently shared the same password because neither had ever 17 Compromis para 9

18 Ibid

19 Ibid

20 Compromis para13

-MEMORANDUM for theRESPONDENT-

changed it from the default password for the voicemail system ldquo123456rdquo Before the source

had realized the mistake heshe clicked on the first message and heard it21 Suspecting that

the ldquoBansitrdquo on the message was in fact Rho the source then realized that this mailbox was

not hishers The source downloaded the copy of the message and sent the copy to Sang but

asking him not to reveal hisher identity22

PROVISIONS OF WIRETAP ACT

9 Mhuganian law makes it illegal under the Wiretap Act to ldquointentionally intercept or

obtain unauthorized access to any telephone or electronic communications whether in

transit or in storage23rdquo The Wiretap Act further makes it illegal for ldquoany person to

disseminate the contents of a telephone or electronic communications that the person knows

to have been unlawfully intercepted or obtained under this Act24rdquo The Wiretap Act provides

for both civil and criminal penalties Among the civil penalties are statutory damages up to

1000000 MHD The portion of the Wiretap Act described here contains an exception for

anyone acting in an official government capacity25

The Wiretap Act defines ndash

a) ldquodirectly accessedrdquo to include both (1) a link that leads directly to the material and

(2) any link that from the surrounding context reasonably indicates that it will lead

21 Ibid

22 Ibid

23 Compromis para14

24 Ibid

25 Ibid

-MEMORANDUM for theRESPONDENT-

to the prohibited material and does in fact lead to such material regardless of how

many links it takes to reach the prohibited material26

b) A search engine can meet its obligations under such an order by de-indexing the

relevant web pages but such de-indexing is not required so long as the relevant web

pages do not appear on the first page of search results27

c) The order remains in force unless and until the court rules against the plaintiff on

the Wiretap Act claim (or an appellate court rules against the plaintiff on this claim)

or the case is otherwise dismissed If the plaintiff prevails on the claim and

continues to prevail through any appeals the order effectively becomes permanent28

d) The Act provides for both civil and criminal penalties for a violation of such a

search engine order with statutory damages of up to 10000 MHD per day of

violation for a negligent violation and up to 1000000 MHD per day for an

intentional violation Criminal penalties are only available for an intentional

violation29

10 On May 8 2013 Rho sued Sang under the Wiretap Act for knowingly disseminating

the contents of unlawfully obtained communications30 Rho immediately applied for a search

engine order under the Act against Centiplex which the court granted31 The court

26 Compromis para15

27 Ibid

28 Ibid

29 Ibid

30 Compromis para16

31 ibid

-MEMORANDUM for theRESPONDENT-

ultimately ruled that Sang had violated the Wiretap Act and awarded statutory damages to

Rho of 400000 MHD In so ruling the court found under Mhuganian law that while the

sourcersquos initial hearing of the voicemail message may have been accidental the subsequent

downloading of the message to hisher computer was intentional and unauthorized under the

Wiretap Act and that furthermore because Sang had recounted on his blog all of the

relevant facts about the circumstances under which the source had acquired the voicemail

message Sang had the knowledge required to be liable under the Act32

11 Centiplex was given the search engine order by the court for disseminating the

contents of the recorded voicemail under the wiretap act and centiplex immediately began to

comply with the order entered against it33 Centiplex made an appearance in Rhorsquos case

against Sang in order to challenge the validity of the search engine order but the court

upheld the order34

12 In the same lawsuit Rho also sued the unknown source of the recorded voicemail

message as a ldquoJohn Doe35rdquo Rho subpoenaed Sang for the identity of that person Sang filed

a motion with the court to quash the subpoena asserting a privilege to hide the identity of

his source36 The court denied the motion to quash as under Mhuganian law the court does

recognize a qualified privilege not to reveal sources but only to ldquoprofessional journalistsrdquo

32 ibid

33 Compromis para1617

34 Ibid

35 Compromis para18

36 Ibid

-MEMORANDUM for theRESPONDENT-

but Sang was not a professional journalist as he did not disseminate the information to the

public for the gain of livelihood as the revenue goes to the CentiplexHowever the court did

grant a stay of the subpoena

2013 SEARCH PRIVACY ACT

13 On May 15 2013 Mhugan enacted the Search Privacy Act which makes it unlawful

for a search engine to sell information about a personrsquos search queries without that personrsquos

consent37

a) For purposes of this Act a ldquosalerdquo is defined to be a ldquotransfer in exchange for

anything of valuerdquo

b) Information is considered to be information ldquoabout a personrsquos search queriesrdquo if

individual search queries are associated with ldquoany identifier including without

limitation a name address phone number email address government identification

number date of birth or IP addressrdquo

c) The Act does not apply to non-sale transfers of such information nor does it apply

to any subsequent transfers of the same information after an initial transfer by the

search engine whether or not those subsequent transfers are sales

d) The Act contains explicit exceptions for disclosures to law enforcement agencies

pursuant to a warrant subpoena or court order and disclosures incident to the

search enginersquos ordinary course of business

e) The Act provides for compensatory or statutory damages at the plaintiffrsquos election

as well as punitive damages for a ldquowillful violationrdquo

f) The Act is scheduled to become effective on May 1 201438

37 Compromis para19

38 ibid

-MEMORANDUM for theRESPONDENT-

14 On May 20 2013 Centiplex sued in Mhugan to have the Search Privacy Act

declared invalid under the laws and Constitution of Mhugan39 But the court held the search

privacy act to be valid40

15 All of the rulings described above were appealed to the Mhugan Supreme Court the

highest appellate court in Mhugan and the Mhugan Supreme Court dismissed all of the

appeals41

16 Sang and Centiplex have challenged all of the following in the Universal Court of

Human Rights42

a) the damages imposed on Sang for disseminating the recorded voicemail

b) the subpoena to Sang to disclose the source of the recorded voicemail

c) the order against Centiplex requiring that webpages that link to the recorded

voicemail including Sangrsquos blog posts never appear on the first page of search

results

d) the validity of the 2013 Search Privacy Act43

39 Compromis para 20

40 Ibid

41 Compromis para21

42 Compromis para 22

43 Ibid

-MEMORANDUM for theRESPONDENT-

17 No law domestic or international restricts either Sangrsquos or Centiplexrsquos standing to

bring these challenges44 Both Sangrsquos and Centiplexrsquos positions have been rejected on the

merits in the domestic courts of Mhugan and all appeals or other legal remedies within the

Mhuganian court system have been exhausted45

STATEMENT OF JURISDICTION

CASE CONCERNING RIGHTS AND OBLIGATIONS UNDER THE UDHR

SANG AND CENTIPLEX Applicants

v

44 Compromis para 23

45 Ibid

-MEMORANDUM for theRESPONDENT-

THE REPUBLIC OF MHUGAN Respondent

ldquoSang and Centiplex (the Applicants) and the Republic of Mhugan (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 Mhuganian means the

Universal Freedom of Expression Court has jurisdiction in this matterrdquo

IN THE UNIVERSAL FREEDOM OF EXPRESSION COURT

THE RESPONDENT MOST HUMBLY AND RESPECTFULLY SUBMITS TO THE

JURISDICTION OF THIS HONrsquoBLE COURT

QUESTIONSPRESENTED

THE FOLLOWING QUESTIONS HAVE BEEN PRESENTED BEFORE THE COURT

FOR ITS DETERMINATION

1 WHETHER THE DAMAGES IMPOSED ON THE APPLICANT ARE CONSISTENT

WITH THE PROVISIONS OF THE UDHR

-MEMORANDUM for theRESPONDENT-

2 WHETHER THE REQUIREMENT TO DISCLOSE THE SOURCE OF THE

RECORDED VOICEMAIL IS CONSISTENT WITH THE PROVISIONS OF THE

UDHR

3 WHETHER THE SECTION OF THE WIRETAP ACT THAT PROVIDES FOR A

SPECIAL PROVISIONAL REMEDY IS CONSISTENT WITH THE UDHR

4 WHETHER THE PROVISIONS OF THE 2013 SEARCH PRIVACY ACT ARE

CONSISTENT WITH THE UDHR

SUMMARYOF ARGUMENTS

A The courts finding imposed damages of 400000 MHD on the Applicant First the

requirement does not infringe the right to freedom of expression of the Applicant Herein

firstly Respondent submits that the impugned requirement does not restrict the right to

freedom of expression and secondly it does not cause a chilling effect Second property

rights under Article 17 are not infringed because the Applicant cannot enjoy his right by

violating ones right under Article 12 The allegation emphasised by the Applicant does not

contribute to public debate as there are no facts substantiating the allegation Third the

-MEMORANDUM for theRESPONDENT-

Respondent possess a reasonable expectation of privacy under Article 12 which has been

violated after the dissemination of the unauthorised information took place In any event the

restriction is permissible under Article 29(2) of the UDHR It is prescribedby law under the

Wiretap Act The situation in Mhugan shows that the Wiretap Act is clearly in pursuit of the

legitimate aims of serves to protect an individualrsquos right from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR The restriction is necessary in a

democratic society as it corresponds to a pressing social need and is proportionate to the

legitimate aims

B The requirement by the court has mandated the Applicant to disclose the identity of

the source of the voicemail and it does not contravene the rights to freedom of expression

enshrined in Article 19 of the UDHR Herein firstly Article 19 does not include the right to

anonymity secondly it does not cause a chilling effect and finally the requirement does

not constitute prior restraint

Further the requirement does notcontravene the right to privacy guaranteed under Article 12

of the UDHR because there is no actual subjective expectation of privacy which is

objectively reasonable Finally theright to remedy enshrined in Article 8 of the UDHR has

not been violated because the Respondent has a right to effective remedy which is possible

only when the Applicant will disclose the name of the source of the information that

infiltrated the voicemailIn any event these measures are valid limitations under Article

29(2) of the UDHR Theysatisfy the three-tiered test of legality legitimacy and necessity

C The requirement by the Court mandated Centiplex to remove the impugned

information from the first page of search result First it does not contravene the right to

expression enshrined in Article 19 of the UDHR Herein firstly the restriction doesnt

impose filtering or prior restraint secondly it does not create a Chilling effect Second the

-MEMORANDUM for theRESPONDENT-

right to privacy guaranteed under Article 12 is violated as it has a superseding effect on

Applicants right guaranteed under Article 19 In any event these measures are valid

limitations under Article 29(2) of the UDHR They satisfy the three-tier test of legality

legitimacy and necessity

D The requirement under the 2013 Search Privacy Act is consistent with the UDHR

First the requirement does not contravene right to privacy enshrined in Article 12 of the

UDHRItexemplifies how in certain circumstances the right to privacy outweighs the right

to freedom of expression Second it does not contravene Article 19 as it complies with the

three-tier test under Article 29(2) The restriction is prescribed by law as it is made under the

authority of the SPA It is pursuant to the legitimate aim of protection of rights of others as

the Respondent possesses a reasonable expectation of privacy Further the restriction is

necessary in ademocratic society as the dissemination does not warrant to a debate of

general interest

ARGUMENTS

A THE DAMAGES IMPOSED ON THE APPLICANT ARE JUST FAIR AND

CONSISTENT WITH THE PROVISIONS OF THE UDHR

1 The courts finding imposed damages of 400000 MHD46 on the Applicant

Respondent submits that this requirement is consistent with the right to freedom of speech

and expression under Article 19 [I] right to property under Article 17 [II] and valid under

46 Compromis para16

-MEMORANDUM for theRESPONDENT-

Article 29(2) [III] Moreover the dissemination was privacy intrusive under Article 12

UDHR [IV]

I The requirement is not a restriction on Article 19 UDHR

2 Article 19 guarantees ldquothe right to freedom of opinion and expression hellip without

interferencehellipthrough any mediardquo47 Respondent submits that the impugned requirement

does not restrict the right to freedom of expression [a] and does not cause a chilling effect

[b]

a) The requirement does not restrict the freedom of expression

3 Notwithstanding the pressrsquo vital ldquowatchdogrdquo role48 journalists cannot be released

from their duty to obey the ordinary law on the basis that Article 19 of the UDHR affords

them protection49 In Stoll v Switzerland the ECtHR held that there is no lsquowholly

unrestricted freedom of expression even with respect to press reporting of matters of serious

public concernrsquo50 The Respondent emphasises the Courtrsquos sentiment that journalistic

ethics51 play a considerably important role lsquogiven the influence wielded by the media in

contemporary societyrsquo52 It is no excuse to say that Sangrsquos duty as a journalist compelled

47 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19 See also International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

48 Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government Ethics(The ANNALS of the American Academy of Political and Social Science1995 )

49Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

50Stoll (n 49) BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR 20 May 1999) 65

51 Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5 October 2013

52Stoll (n 49) 104

-MEMORANDUM for theRESPONDENT-

him to commit an unlawful act53 when in fact this duty could have been discharged through

legal and ethical means54

4 Moreover it is established that ldquonews broadcasting should be based on truthfulness

ensured by the appropriate means of verification and proof and impartiality in

presentation description and narrationrdquo55 Sang clearly did not follow these standards56

Having in mind that ldquoduties and responsibilities which accompany the exercise of the right

tofreedom of expression by media professionals assume special significance in situations

ofconflict and tensionrdquo57 it can be manifestly perceived that Rho had sent the voicemailonly

to let off some steam to his good friend Taur58 which proves prima faciethere was no such

situation prevailing and dissemination does not meet these standards

b) The impugned requirement does not cause a lsquoChilling effectrsquo

5 Ultimately the Respondent reiterates that there is no interference with the freedom

of the press59 Further the damages60 imposed upon Sang do not amount to a form of

censorship61 intended to discourage the press from expressing criticism62 Requirement to

53 Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt accessed 5 October 2013

54 Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013

55 Resolution 1003 (1993) on the ethics of journalism adopted by the Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

56 Compromis para13

57Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

58 Compromis para11

59Freedom of the Press lthttpwwwpuclorgfrom-archivesMediafreedom-presshtmgt accessed 9 October 210360 Compromis para 16

61 Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October 2013

62Stoll (n 49) 154

-MEMORANDUM for theRESPONDENT-

pay damages was merely to discourage journalist for adopting unlawful methods for

obtaining information63 protect right to privacy enshrined under Article 12 UDHR and

public order64 and is wholly proportionate in this instance The safeguard afforded by

freedom of speech in relation to journalistic reporting on issues of general interest is subject

to the journalistacting in good faith and in accordance with the ethics of journalism65

Regardless of the Applicantrsquos misguided beliefs and best intentions his profession is no

source of immunity or impunity66 the road to perdition is paved with bona-fide intentions

II The requirement does not restrict Article 17 UDHR

6 Sang had doubtlessly breached his lsquoduties and responsibilitiesrsquo67 the ethics of

journalism68 and did not act lsquoin good faithrsquo69Besides the information lsquodoes not bear on

matters of general importancersquo70 and its dissemination is an abuse of the pressrsquos ldquowatchdogrdquo

role71To enhance this contention reliance is placed upon three groundsFirst while earlier

63 Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-

codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

64 Public Order lthttpwwwusiporgguiding-principles-stabilization-and-reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October 2013

65Stoll (n 32) 103

66Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) International Court of Justice 14 February 2002

67The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

68BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20 May 1999)

69Pedersen (n 44)

70Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

71Warren(n 49)

-MEMORANDUM for theRESPONDENT-

decisions of the Strasbourg courts tend not to tolerate high damages awards72 none of them

involved the scale of character assassination like in this case73Second spousal abuse74 is a

serious allegation aimed at scandalising Rhorsquos reputation for negative publicity75 purposes

and third such an allegation does not contribute to public debate where there are no facts

substantiating the allegation76

7 Furthermore such an allegation is solely speculative and was coldly calculated to

inflict maximum damage to Rhorsquos reputation77 Rhorsquos loss must be seen in the context of

his negative publicity78 and its impact on his pecuniary loss arising from the protest79 In

addition to that the grief over loss of reputation and honour which was clearly compounded

by the tasteless spousal abuse allegations80 Rho has absolute right to ask for damages since

his right to privacy is in issue and since ldquothe possibility of taking an action under civil law

should be guaranteed to enable a victim to claim possible damages for invasion of

privacyrdquo81 Furthermore the damages are reasonable and does not violate right to enjoyment

of property of the Applicant

72Jersild v Denmark App no 159808 (ECHR 23 September 1994)

73Clarification 10

74Domestic Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt accessed 6 October 2013

75 What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October 2013

76 Compromis para12

77 Compromis para13

78 Clarification 10

79 Compromis para9

80Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June 2007)

81 Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary Assembly of Council of Europe 26 July 1998 Article 14(i)

-MEMORANDUM for theRESPONDENT-

III In any event the requirement is permissible under Article 29(2) UDHR

a) The requirement is prescribed by law

8 Imposing damages on Sang for breach of the Wiretap Act82 is a justified interference

with his freedom of expression The interference in question is validly provided by law and

serves to protect an individualrsquos right to protection from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR

b) The requirement is in pursuance of legitimate aims

9 The ECtHR in Handyside v United Kingdom83 acknowledged that lsquostate authorities

are in principle in a better position than the international judge to give an opinion on the

exact content of these requirements as well as on the necessity of a restriction of a

penaltyrsquo84 Whether a restriction is necessary in the circumstances is therefore an inquiry

based on the facts and circumstances prevailing in the country concerned which the national

authorities are in a better position to undertake85 For the foregoing reasons the requirement

is in pursuance of legitimate aims

c) The restriction is necessary in a democratic society

10 The thrust of the Mhugan courtrsquos reasoning in imposing damages on Sang was

directed at his dissemination of lsquounlawfully obtained materialrsquo86 ie Rhorsquos recorded

82 Compromis para14

83 App no 549372( ECHR 7 December 1976)

84Handyside(n 28) at [48] The Sunday Times (n 8) Joint Dissenting Opinion of Judges Wiarda Cremona Thor Vilhjalmsson Ryssdal Ganshof van der Meersch Sir Gerald Fitzmaurice Bindschedler-Robert Liesh and Matscher

85Case of Klass and Others v Germany App no 502971(EHRR 6 September 1978)

86 Compromis para16

-MEMORANDUM for theRESPONDENT-

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 10: Oxford Respondent

10593 1289413094 and 15296 (1998) (ACHPR)

Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

CASES OF THE EUROPEAN COURT OF HUMAN RIGHTS

Referred to in

Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR

20 May 1999) 65

Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20

May 1999)

Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

Jersild v Denmark App no 159808 (ECHR 23 September 1994)

Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June

2007)

Handyside v United Kingdom App no 549372( ECHR 7 December 1976)

-MEMORANDUM for theRESPONDENT-

Klass and Others v Germany App no 502971(EHRR 6 September 1978)

Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November

2004)

KU v Finland App no 287202 (ECtHR 2 March 2009

Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008)

Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

Worm v Austria (1997) 25 EHRR 454

Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

Silver and Others v United Kingdom Application no 594772 (25

March 1983)

The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November

1991)

Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

-MEMORANDUM for theRESPONDENT-

Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

Kruslin v France App no 1180185(ECHR 24 April 1990)

Huvig v France App No 1110584( ECHR 24 April 1990)

Burghartz v Switzerland (1994) 18 EHRR 101

Von Hannover v Germany (2005) 40 EHRR 1

Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002)

Nebraska Press Association v Stuart427 US 539 559 (1976)

PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001)

Peck v United Kingdom (2003) 36 EHRR 41

New York Times Co v Sullivan 376 US 254 (1964)

Lingens v Austria App no 981582 (ECtHR 8 July 1986)

Friedl v Austria 1522589 (ECHR 31 January 1995)

PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001)

Peck v United Kingdom (2003) 36 EHRR 41

Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR

18 January 2011)

-MEMORANDUM for theRESPONDENT-

X and Y v Netherlands App no 897880(ECHR 26 March 1985)

ETK v News Group Newspapers [2011] EWCA Civ 439

Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no

5422400

(ECtHR 12 December 2000)

Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902

(ECtHR

13 May 2003)

Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006)

Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR

28 March 1990)

HRH Princess of Wales v MGN Newspapers App no1306997 (ECtHR 11

December 2003)

Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July

2009)

-MEMORANDUM for theRESPONDENT-

Klass and Others v Germany (App no 502971)Application

No 502971(ECHR 6 September1978)

Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25

February 1992)

Plon(socieacuteteacute) v FranceApp no 5814800(ECHR 18 May 2004)

Worm v Austria (1997) 25 EHRR 454

X and Y v Netherlands App no897880(ECHR 26 March 1985)

Funke v France App no 1082884(ECHR 25 February 1993) Keegan v

Ireland (1994) 18 EHRR 342

Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

UNITED STATES

Referred to in

McIntyre v Ohio Elections Commission 514 US 334 (1995)

Buckley v Valeo424 US 1 (1976)

Branzburg v Hayes 408 US 665

-MEMORANDUM for theRESPONDENT-

OShea v Littleton 414 US 488 (1974)

Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

Laird v Tatum 408 US 1 (1972)

Meese v Keene 481 US 465 (1987)

Niemotko v Maryland 340 US 268 (1951)

Shuttleworth v Birmingham 394 US 147 (1969)

Frisby v Schultz 487 US 474 (1988)

Katz v United States 389 US 347 (1967)

Acrara v Cloud Books Inc478 US 697 (1986)

Alexander v US 509 US 544 (1993)

Gertz v Welch 418 US 323 (1974)

Time Inc v Firestone 424 US 448 (1976)

Bartnicki v Vopper532 US 514 (2001)

Hutchinson v Proxmire443 US 111 (1979)

Wolston v Readerrsquos Digest Association Inc443 US 157 (1979)

Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981)

-MEMORANDUM for theRESPONDENT-

Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987)

Cox v New Hampshire 312 US 569 (1941)

Freedman v Maryland 380 US 51 (1965)

Madsen v Womenrsquos Health CenterInc et al 512 US 753 (1994)

United States v OBrien 391 US 367 (1968)

Turner Broadcasting System Inc v FCC 512 US 622 (1994)

Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton

536 US 150 (2002)

Ward v Rock Against Racism 491 US 781 (1989)

Galella v Onassis 487 F 2d 986 (1973)

Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

Bartnicki v Vopper532 US 514 (2001)

R v Oakes [1986] 1 SCR 103

New York Times Co v United States 403 US 713

Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186

(1984)

-MEMORANDUM for theRESPONDENT-

HUMAN RIGHTS COMMITTEE

Referred to in

Aduayom Diasso and Dobou v Togo Communications Nos 4221990

4231990

and 4241990 UN Doc CCPRC51D4221990 4231990 and 4241990

(1996)

ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN

Doc CCPRC85D11802003 (2006) (UN Human Rights Committee)

ENGLISH CASES

Referred to

in

A v B and Anr[2002] EWCA Civ 337 (UK)

McKennitt v Ash [2007] 3 WLR 194

Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK)

D v L [2004] EMLR 1 (UK)

Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK)

Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK)

-MEMORANDUM for theRESPONDENT-

R v Broadcasting Standards Commission ex parte British Broadcasting

Corporation (Liberty intervening) [2000] 3 All ER 989 (UK)

R v Loveridge[2001] EWCA Crim 973 (UK)

INDIAN CASES

Referred to in

Zimbabwe

Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231

REGIONAL AND INTERNATIONAL INSTRUMENTS

African Charter on Human and Peoplesrsquo Rights (adopted 27 June

1981entered into force 21 October 1986) (1982) 21 ILM 58

American Convention on Human Rights (adopted 22 November

1969entered into force 18 July 1978)

European Convention on Human Rights (adopted 4 November 1950

entered into force 3 September 1953)

International Covenant on Civil and Political Rights (adopted 16

-MEMORANDUM for theRESPONDENT-

December 1966 entered into force 23 March 1976) 999 UNTS 171

Universal Declaration of Human Rights (adopted 10 December 1948

UNGA Res 217 A(III)

CONSTITUTION

The Constitution of United States of America 1788

The Constitution of Argentina 1853

The Constitution of Belgium 1831

The Constitution of Brazil 1988

The Constitution Act of Finland 2000

The Constitution of India 1950

STATUTES

MISCELLANEOUS

-MEMORANDUM for theRESPONDENT-

Resolution 1003 (1993) on the ethics of journalism adopted by the

Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

Case Concerning the Arrest Warrant of 11 April 2000 (Democratic

Republic of the Congo v Belgium) (Merits) International Court of Justice

14 February 2002

21

Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary

Assembly of Council of Europe 26 July 1998 Article 14(i)

25

STATEMENT OF RELEVANT FACTS

-MEMORANDUM for theRESPONDENT-

ECONOMIC SCENARIO IN MHUGAN

1 The respondent country Republic of Mhugan is a country which obtained

independence in 1959 and since then it has had a parliamentary form of government1 Its

economy has grown rapidly since the late twentieth century fueled by a combination of

information technology industries manufacturing and financial services2

SOCIAL STATUS OF RHO

2 BansitSangnont better known by his stage name Rho is a pop music singer-

songwriter in Mhugan3 Rho after his music video for his song ldquoPokeacutePokeacuterdquo in 2011 became

very successful and was known throughout the world In early 2013 rumors began to

surface that Rho has been physically andor emotionally abusive to his wife an allegation

that Rho has vehemently denied4

COMPANIES PROVIDING INFORMATION ON SEARCH QUERIES

3 Centiplex Corporation based in Mhugan is the leading Internet services company in

Mhugan5 It runs an Internet search engine More than 80 of all search queries in Mhugan

are conducted through Centiplex and the remaining being conducted through Google6

Dexian is a global information services company based in the United States7 Its core

business is collecting aggregating analyzing and disseminating information relating to

1 Compromis para 1

2 Ibid

3 Compromis para 2

4 Compromis para 3

5 Compromis para4

6 Ibid

7 Compromis para 5

-MEMORANDUM for theRESPONDENT-

individuals8 Dexian claims to have records for almost 500 million people although those

records vary widely in their scope completeness and correctness9 The particular methods

that Dexian uses to combine sources and build individual records are not publicly known

and Dexian claims such information to be a trade secret10

4 Centiplex is a Dexian client and both buys and sells data to Dexian11 Prior to the

2013 Search Privacy Act described below no law or regulation in Mhugan restricted a

search enginersquos ability to collect disclose or use information12

ALLEGATIONS IMPOSED ON THON SANG

5 Thon Sang maintains an active blog on the Centiplex platform in Mhugan13 The ad

revenue goes to the centiplex and is not shared with the bloggers themselves14Sang is

ldquocelebrity-obsessedrdquo and his news is dedicated to Mhuganian celebrities15Sang has blogged

about the rumors of Rho abusing his wife writing that ldquoif true people should boycott Rhorsquos

music in protestrdquo16 On May 1 2013 Sang posted a voicemail that Rho left for his friend

8 Ibid

9 Ibid

10 Ibid

11 Compromis para 6

12 Ibid

13 Compromis para 7

14 Ibid

15 Compromis para 8

16 Ibid

-MEMORANDUM for theRESPONDENT-

TaurAklamit17 In the voicemail someone identifying himself as ldquoBansitrdquo said that he was

ldquofurious with my wife for not being more obedientrdquo and that ldquoI need to give her a good

smacking to show her whorsquos in chargerdquo18 Sang wrote in his post that he got this recording

from someone who tried to get into Aklamitrsquos voicemail Sang also wrote ldquoso the rumors are

true Boycott Rho and donrsquot even think about dancing the PokeacutePokeacuterdquo 19

6 The next day Sang posted again to gain more popularity- ldquoMore evidence this time

from Rhorsquos web searches which include lsquohow to control your wifersquo and lsquowhipping

techniquesrsquordquo Sang was very anxious to acquire information regarding Rho and therefore he

purchased Rhorsquos profile from Dexian for 20000 MHD which is approximately 002 Euros

7 On May 4 Rho held a press conference with his wife at his side where he stated

that he left the recorded voicemail for his friend TaurAlkamit and he would never even

dream of striking his wife He called Sang and whoever had recorded the voicemail

ldquovicious unethical and unprofessional rumor mongersrdquo who were ldquocriminals who deserve

to be punishedrdquo while his wife was busy listening to him and did not utter a word at the

conference On May 5 Sang again posted a reply stating that he was disgruntled by Rhorsquos

explanations

8 Sang clarified that the source of the voicemail had explained to him how he or she

had come across the message20 The source had entered Aklamitrsquos number by mistake

Aklamit and the source apparently shared the same password because neither had ever 17 Compromis para 9

18 Ibid

19 Ibid

20 Compromis para13

-MEMORANDUM for theRESPONDENT-

changed it from the default password for the voicemail system ldquo123456rdquo Before the source

had realized the mistake heshe clicked on the first message and heard it21 Suspecting that

the ldquoBansitrdquo on the message was in fact Rho the source then realized that this mailbox was

not hishers The source downloaded the copy of the message and sent the copy to Sang but

asking him not to reveal hisher identity22

PROVISIONS OF WIRETAP ACT

9 Mhuganian law makes it illegal under the Wiretap Act to ldquointentionally intercept or

obtain unauthorized access to any telephone or electronic communications whether in

transit or in storage23rdquo The Wiretap Act further makes it illegal for ldquoany person to

disseminate the contents of a telephone or electronic communications that the person knows

to have been unlawfully intercepted or obtained under this Act24rdquo The Wiretap Act provides

for both civil and criminal penalties Among the civil penalties are statutory damages up to

1000000 MHD The portion of the Wiretap Act described here contains an exception for

anyone acting in an official government capacity25

The Wiretap Act defines ndash

a) ldquodirectly accessedrdquo to include both (1) a link that leads directly to the material and

(2) any link that from the surrounding context reasonably indicates that it will lead

21 Ibid

22 Ibid

23 Compromis para14

24 Ibid

25 Ibid

-MEMORANDUM for theRESPONDENT-

to the prohibited material and does in fact lead to such material regardless of how

many links it takes to reach the prohibited material26

b) A search engine can meet its obligations under such an order by de-indexing the

relevant web pages but such de-indexing is not required so long as the relevant web

pages do not appear on the first page of search results27

c) The order remains in force unless and until the court rules against the plaintiff on

the Wiretap Act claim (or an appellate court rules against the plaintiff on this claim)

or the case is otherwise dismissed If the plaintiff prevails on the claim and

continues to prevail through any appeals the order effectively becomes permanent28

d) The Act provides for both civil and criminal penalties for a violation of such a

search engine order with statutory damages of up to 10000 MHD per day of

violation for a negligent violation and up to 1000000 MHD per day for an

intentional violation Criminal penalties are only available for an intentional

violation29

10 On May 8 2013 Rho sued Sang under the Wiretap Act for knowingly disseminating

the contents of unlawfully obtained communications30 Rho immediately applied for a search

engine order under the Act against Centiplex which the court granted31 The court

26 Compromis para15

27 Ibid

28 Ibid

29 Ibid

30 Compromis para16

31 ibid

-MEMORANDUM for theRESPONDENT-

ultimately ruled that Sang had violated the Wiretap Act and awarded statutory damages to

Rho of 400000 MHD In so ruling the court found under Mhuganian law that while the

sourcersquos initial hearing of the voicemail message may have been accidental the subsequent

downloading of the message to hisher computer was intentional and unauthorized under the

Wiretap Act and that furthermore because Sang had recounted on his blog all of the

relevant facts about the circumstances under which the source had acquired the voicemail

message Sang had the knowledge required to be liable under the Act32

11 Centiplex was given the search engine order by the court for disseminating the

contents of the recorded voicemail under the wiretap act and centiplex immediately began to

comply with the order entered against it33 Centiplex made an appearance in Rhorsquos case

against Sang in order to challenge the validity of the search engine order but the court

upheld the order34

12 In the same lawsuit Rho also sued the unknown source of the recorded voicemail

message as a ldquoJohn Doe35rdquo Rho subpoenaed Sang for the identity of that person Sang filed

a motion with the court to quash the subpoena asserting a privilege to hide the identity of

his source36 The court denied the motion to quash as under Mhuganian law the court does

recognize a qualified privilege not to reveal sources but only to ldquoprofessional journalistsrdquo

32 ibid

33 Compromis para1617

34 Ibid

35 Compromis para18

36 Ibid

-MEMORANDUM for theRESPONDENT-

but Sang was not a professional journalist as he did not disseminate the information to the

public for the gain of livelihood as the revenue goes to the CentiplexHowever the court did

grant a stay of the subpoena

2013 SEARCH PRIVACY ACT

13 On May 15 2013 Mhugan enacted the Search Privacy Act which makes it unlawful

for a search engine to sell information about a personrsquos search queries without that personrsquos

consent37

a) For purposes of this Act a ldquosalerdquo is defined to be a ldquotransfer in exchange for

anything of valuerdquo

b) Information is considered to be information ldquoabout a personrsquos search queriesrdquo if

individual search queries are associated with ldquoany identifier including without

limitation a name address phone number email address government identification

number date of birth or IP addressrdquo

c) The Act does not apply to non-sale transfers of such information nor does it apply

to any subsequent transfers of the same information after an initial transfer by the

search engine whether or not those subsequent transfers are sales

d) The Act contains explicit exceptions for disclosures to law enforcement agencies

pursuant to a warrant subpoena or court order and disclosures incident to the

search enginersquos ordinary course of business

e) The Act provides for compensatory or statutory damages at the plaintiffrsquos election

as well as punitive damages for a ldquowillful violationrdquo

f) The Act is scheduled to become effective on May 1 201438

37 Compromis para19

38 ibid

-MEMORANDUM for theRESPONDENT-

14 On May 20 2013 Centiplex sued in Mhugan to have the Search Privacy Act

declared invalid under the laws and Constitution of Mhugan39 But the court held the search

privacy act to be valid40

15 All of the rulings described above were appealed to the Mhugan Supreme Court the

highest appellate court in Mhugan and the Mhugan Supreme Court dismissed all of the

appeals41

16 Sang and Centiplex have challenged all of the following in the Universal Court of

Human Rights42

a) the damages imposed on Sang for disseminating the recorded voicemail

b) the subpoena to Sang to disclose the source of the recorded voicemail

c) the order against Centiplex requiring that webpages that link to the recorded

voicemail including Sangrsquos blog posts never appear on the first page of search

results

d) the validity of the 2013 Search Privacy Act43

39 Compromis para 20

40 Ibid

41 Compromis para21

42 Compromis para 22

43 Ibid

-MEMORANDUM for theRESPONDENT-

17 No law domestic or international restricts either Sangrsquos or Centiplexrsquos standing to

bring these challenges44 Both Sangrsquos and Centiplexrsquos positions have been rejected on the

merits in the domestic courts of Mhugan and all appeals or other legal remedies within the

Mhuganian court system have been exhausted45

STATEMENT OF JURISDICTION

CASE CONCERNING RIGHTS AND OBLIGATIONS UNDER THE UDHR

SANG AND CENTIPLEX Applicants

v

44 Compromis para 23

45 Ibid

-MEMORANDUM for theRESPONDENT-

THE REPUBLIC OF MHUGAN Respondent

ldquoSang and Centiplex (the Applicants) and the Republic of Mhugan (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 Mhuganian means the

Universal Freedom of Expression Court has jurisdiction in this matterrdquo

IN THE UNIVERSAL FREEDOM OF EXPRESSION COURT

THE RESPONDENT MOST HUMBLY AND RESPECTFULLY SUBMITS TO THE

JURISDICTION OF THIS HONrsquoBLE COURT

QUESTIONSPRESENTED

THE FOLLOWING QUESTIONS HAVE BEEN PRESENTED BEFORE THE COURT

FOR ITS DETERMINATION

1 WHETHER THE DAMAGES IMPOSED ON THE APPLICANT ARE CONSISTENT

WITH THE PROVISIONS OF THE UDHR

-MEMORANDUM for theRESPONDENT-

2 WHETHER THE REQUIREMENT TO DISCLOSE THE SOURCE OF THE

RECORDED VOICEMAIL IS CONSISTENT WITH THE PROVISIONS OF THE

UDHR

3 WHETHER THE SECTION OF THE WIRETAP ACT THAT PROVIDES FOR A

SPECIAL PROVISIONAL REMEDY IS CONSISTENT WITH THE UDHR

4 WHETHER THE PROVISIONS OF THE 2013 SEARCH PRIVACY ACT ARE

CONSISTENT WITH THE UDHR

SUMMARYOF ARGUMENTS

A The courts finding imposed damages of 400000 MHD on the Applicant First the

requirement does not infringe the right to freedom of expression of the Applicant Herein

firstly Respondent submits that the impugned requirement does not restrict the right to

freedom of expression and secondly it does not cause a chilling effect Second property

rights under Article 17 are not infringed because the Applicant cannot enjoy his right by

violating ones right under Article 12 The allegation emphasised by the Applicant does not

contribute to public debate as there are no facts substantiating the allegation Third the

-MEMORANDUM for theRESPONDENT-

Respondent possess a reasonable expectation of privacy under Article 12 which has been

violated after the dissemination of the unauthorised information took place In any event the

restriction is permissible under Article 29(2) of the UDHR It is prescribedby law under the

Wiretap Act The situation in Mhugan shows that the Wiretap Act is clearly in pursuit of the

legitimate aims of serves to protect an individualrsquos right from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR The restriction is necessary in a

democratic society as it corresponds to a pressing social need and is proportionate to the

legitimate aims

B The requirement by the court has mandated the Applicant to disclose the identity of

the source of the voicemail and it does not contravene the rights to freedom of expression

enshrined in Article 19 of the UDHR Herein firstly Article 19 does not include the right to

anonymity secondly it does not cause a chilling effect and finally the requirement does

not constitute prior restraint

Further the requirement does notcontravene the right to privacy guaranteed under Article 12

of the UDHR because there is no actual subjective expectation of privacy which is

objectively reasonable Finally theright to remedy enshrined in Article 8 of the UDHR has

not been violated because the Respondent has a right to effective remedy which is possible

only when the Applicant will disclose the name of the source of the information that

infiltrated the voicemailIn any event these measures are valid limitations under Article

29(2) of the UDHR Theysatisfy the three-tiered test of legality legitimacy and necessity

C The requirement by the Court mandated Centiplex to remove the impugned

information from the first page of search result First it does not contravene the right to

expression enshrined in Article 19 of the UDHR Herein firstly the restriction doesnt

impose filtering or prior restraint secondly it does not create a Chilling effect Second the

-MEMORANDUM for theRESPONDENT-

right to privacy guaranteed under Article 12 is violated as it has a superseding effect on

Applicants right guaranteed under Article 19 In any event these measures are valid

limitations under Article 29(2) of the UDHR They satisfy the three-tier test of legality

legitimacy and necessity

D The requirement under the 2013 Search Privacy Act is consistent with the UDHR

First the requirement does not contravene right to privacy enshrined in Article 12 of the

UDHRItexemplifies how in certain circumstances the right to privacy outweighs the right

to freedom of expression Second it does not contravene Article 19 as it complies with the

three-tier test under Article 29(2) The restriction is prescribed by law as it is made under the

authority of the SPA It is pursuant to the legitimate aim of protection of rights of others as

the Respondent possesses a reasonable expectation of privacy Further the restriction is

necessary in ademocratic society as the dissemination does not warrant to a debate of

general interest

ARGUMENTS

A THE DAMAGES IMPOSED ON THE APPLICANT ARE JUST FAIR AND

CONSISTENT WITH THE PROVISIONS OF THE UDHR

1 The courts finding imposed damages of 400000 MHD46 on the Applicant

Respondent submits that this requirement is consistent with the right to freedom of speech

and expression under Article 19 [I] right to property under Article 17 [II] and valid under

46 Compromis para16

-MEMORANDUM for theRESPONDENT-

Article 29(2) [III] Moreover the dissemination was privacy intrusive under Article 12

UDHR [IV]

I The requirement is not a restriction on Article 19 UDHR

2 Article 19 guarantees ldquothe right to freedom of opinion and expression hellip without

interferencehellipthrough any mediardquo47 Respondent submits that the impugned requirement

does not restrict the right to freedom of expression [a] and does not cause a chilling effect

[b]

a) The requirement does not restrict the freedom of expression

3 Notwithstanding the pressrsquo vital ldquowatchdogrdquo role48 journalists cannot be released

from their duty to obey the ordinary law on the basis that Article 19 of the UDHR affords

them protection49 In Stoll v Switzerland the ECtHR held that there is no lsquowholly

unrestricted freedom of expression even with respect to press reporting of matters of serious

public concernrsquo50 The Respondent emphasises the Courtrsquos sentiment that journalistic

ethics51 play a considerably important role lsquogiven the influence wielded by the media in

contemporary societyrsquo52 It is no excuse to say that Sangrsquos duty as a journalist compelled

47 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19 See also International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

48 Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government Ethics(The ANNALS of the American Academy of Political and Social Science1995 )

49Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

50Stoll (n 49) BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR 20 May 1999) 65

51 Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5 October 2013

52Stoll (n 49) 104

-MEMORANDUM for theRESPONDENT-

him to commit an unlawful act53 when in fact this duty could have been discharged through

legal and ethical means54

4 Moreover it is established that ldquonews broadcasting should be based on truthfulness

ensured by the appropriate means of verification and proof and impartiality in

presentation description and narrationrdquo55 Sang clearly did not follow these standards56

Having in mind that ldquoduties and responsibilities which accompany the exercise of the right

tofreedom of expression by media professionals assume special significance in situations

ofconflict and tensionrdquo57 it can be manifestly perceived that Rho had sent the voicemailonly

to let off some steam to his good friend Taur58 which proves prima faciethere was no such

situation prevailing and dissemination does not meet these standards

b) The impugned requirement does not cause a lsquoChilling effectrsquo

5 Ultimately the Respondent reiterates that there is no interference with the freedom

of the press59 Further the damages60 imposed upon Sang do not amount to a form of

censorship61 intended to discourage the press from expressing criticism62 Requirement to

53 Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt accessed 5 October 2013

54 Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013

55 Resolution 1003 (1993) on the ethics of journalism adopted by the Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

56 Compromis para13

57Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

58 Compromis para11

59Freedom of the Press lthttpwwwpuclorgfrom-archivesMediafreedom-presshtmgt accessed 9 October 210360 Compromis para 16

61 Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October 2013

62Stoll (n 49) 154

-MEMORANDUM for theRESPONDENT-

pay damages was merely to discourage journalist for adopting unlawful methods for

obtaining information63 protect right to privacy enshrined under Article 12 UDHR and

public order64 and is wholly proportionate in this instance The safeguard afforded by

freedom of speech in relation to journalistic reporting on issues of general interest is subject

to the journalistacting in good faith and in accordance with the ethics of journalism65

Regardless of the Applicantrsquos misguided beliefs and best intentions his profession is no

source of immunity or impunity66 the road to perdition is paved with bona-fide intentions

II The requirement does not restrict Article 17 UDHR

6 Sang had doubtlessly breached his lsquoduties and responsibilitiesrsquo67 the ethics of

journalism68 and did not act lsquoin good faithrsquo69Besides the information lsquodoes not bear on

matters of general importancersquo70 and its dissemination is an abuse of the pressrsquos ldquowatchdogrdquo

role71To enhance this contention reliance is placed upon three groundsFirst while earlier

63 Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-

codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

64 Public Order lthttpwwwusiporgguiding-principles-stabilization-and-reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October 2013

65Stoll (n 32) 103

66Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) International Court of Justice 14 February 2002

67The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

68BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20 May 1999)

69Pedersen (n 44)

70Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

71Warren(n 49)

-MEMORANDUM for theRESPONDENT-

decisions of the Strasbourg courts tend not to tolerate high damages awards72 none of them

involved the scale of character assassination like in this case73Second spousal abuse74 is a

serious allegation aimed at scandalising Rhorsquos reputation for negative publicity75 purposes

and third such an allegation does not contribute to public debate where there are no facts

substantiating the allegation76

7 Furthermore such an allegation is solely speculative and was coldly calculated to

inflict maximum damage to Rhorsquos reputation77 Rhorsquos loss must be seen in the context of

his negative publicity78 and its impact on his pecuniary loss arising from the protest79 In

addition to that the grief over loss of reputation and honour which was clearly compounded

by the tasteless spousal abuse allegations80 Rho has absolute right to ask for damages since

his right to privacy is in issue and since ldquothe possibility of taking an action under civil law

should be guaranteed to enable a victim to claim possible damages for invasion of

privacyrdquo81 Furthermore the damages are reasonable and does not violate right to enjoyment

of property of the Applicant

72Jersild v Denmark App no 159808 (ECHR 23 September 1994)

73Clarification 10

74Domestic Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt accessed 6 October 2013

75 What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October 2013

76 Compromis para12

77 Compromis para13

78 Clarification 10

79 Compromis para9

80Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June 2007)

81 Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary Assembly of Council of Europe 26 July 1998 Article 14(i)

-MEMORANDUM for theRESPONDENT-

III In any event the requirement is permissible under Article 29(2) UDHR

a) The requirement is prescribed by law

8 Imposing damages on Sang for breach of the Wiretap Act82 is a justified interference

with his freedom of expression The interference in question is validly provided by law and

serves to protect an individualrsquos right to protection from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR

b) The requirement is in pursuance of legitimate aims

9 The ECtHR in Handyside v United Kingdom83 acknowledged that lsquostate authorities

are in principle in a better position than the international judge to give an opinion on the

exact content of these requirements as well as on the necessity of a restriction of a

penaltyrsquo84 Whether a restriction is necessary in the circumstances is therefore an inquiry

based on the facts and circumstances prevailing in the country concerned which the national

authorities are in a better position to undertake85 For the foregoing reasons the requirement

is in pursuance of legitimate aims

c) The restriction is necessary in a democratic society

10 The thrust of the Mhugan courtrsquos reasoning in imposing damages on Sang was

directed at his dissemination of lsquounlawfully obtained materialrsquo86 ie Rhorsquos recorded

82 Compromis para14

83 App no 549372( ECHR 7 December 1976)

84Handyside(n 28) at [48] The Sunday Times (n 8) Joint Dissenting Opinion of Judges Wiarda Cremona Thor Vilhjalmsson Ryssdal Ganshof van der Meersch Sir Gerald Fitzmaurice Bindschedler-Robert Liesh and Matscher

85Case of Klass and Others v Germany App no 502971(EHRR 6 September 1978)

86 Compromis para16

-MEMORANDUM for theRESPONDENT-

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 11: Oxford Respondent

Klass and Others v Germany App no 502971(EHRR 6 September 1978)

Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November

2004)

KU v Finland App no 287202 (ECtHR 2 March 2009

Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008)

Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

Worm v Austria (1997) 25 EHRR 454

Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

Silver and Others v United Kingdom Application no 594772 (25

March 1983)

The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November

1991)

Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

-MEMORANDUM for theRESPONDENT-

Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

Kruslin v France App no 1180185(ECHR 24 April 1990)

Huvig v France App No 1110584( ECHR 24 April 1990)

Burghartz v Switzerland (1994) 18 EHRR 101

Von Hannover v Germany (2005) 40 EHRR 1

Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002)

Nebraska Press Association v Stuart427 US 539 559 (1976)

PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001)

Peck v United Kingdom (2003) 36 EHRR 41

New York Times Co v Sullivan 376 US 254 (1964)

Lingens v Austria App no 981582 (ECtHR 8 July 1986)

Friedl v Austria 1522589 (ECHR 31 January 1995)

PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001)

Peck v United Kingdom (2003) 36 EHRR 41

Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR

18 January 2011)

-MEMORANDUM for theRESPONDENT-

X and Y v Netherlands App no 897880(ECHR 26 March 1985)

ETK v News Group Newspapers [2011] EWCA Civ 439

Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no

5422400

(ECtHR 12 December 2000)

Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902

(ECtHR

13 May 2003)

Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006)

Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR

28 March 1990)

HRH Princess of Wales v MGN Newspapers App no1306997 (ECtHR 11

December 2003)

Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July

2009)

-MEMORANDUM for theRESPONDENT-

Klass and Others v Germany (App no 502971)Application

No 502971(ECHR 6 September1978)

Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25

February 1992)

Plon(socieacuteteacute) v FranceApp no 5814800(ECHR 18 May 2004)

Worm v Austria (1997) 25 EHRR 454

X and Y v Netherlands App no897880(ECHR 26 March 1985)

Funke v France App no 1082884(ECHR 25 February 1993) Keegan v

Ireland (1994) 18 EHRR 342

Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

UNITED STATES

Referred to in

McIntyre v Ohio Elections Commission 514 US 334 (1995)

Buckley v Valeo424 US 1 (1976)

Branzburg v Hayes 408 US 665

-MEMORANDUM for theRESPONDENT-

OShea v Littleton 414 US 488 (1974)

Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

Laird v Tatum 408 US 1 (1972)

Meese v Keene 481 US 465 (1987)

Niemotko v Maryland 340 US 268 (1951)

Shuttleworth v Birmingham 394 US 147 (1969)

Frisby v Schultz 487 US 474 (1988)

Katz v United States 389 US 347 (1967)

Acrara v Cloud Books Inc478 US 697 (1986)

Alexander v US 509 US 544 (1993)

Gertz v Welch 418 US 323 (1974)

Time Inc v Firestone 424 US 448 (1976)

Bartnicki v Vopper532 US 514 (2001)

Hutchinson v Proxmire443 US 111 (1979)

Wolston v Readerrsquos Digest Association Inc443 US 157 (1979)

Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981)

-MEMORANDUM for theRESPONDENT-

Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987)

Cox v New Hampshire 312 US 569 (1941)

Freedman v Maryland 380 US 51 (1965)

Madsen v Womenrsquos Health CenterInc et al 512 US 753 (1994)

United States v OBrien 391 US 367 (1968)

Turner Broadcasting System Inc v FCC 512 US 622 (1994)

Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton

536 US 150 (2002)

Ward v Rock Against Racism 491 US 781 (1989)

Galella v Onassis 487 F 2d 986 (1973)

Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

Bartnicki v Vopper532 US 514 (2001)

R v Oakes [1986] 1 SCR 103

New York Times Co v United States 403 US 713

Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186

(1984)

-MEMORANDUM for theRESPONDENT-

HUMAN RIGHTS COMMITTEE

Referred to in

Aduayom Diasso and Dobou v Togo Communications Nos 4221990

4231990

and 4241990 UN Doc CCPRC51D4221990 4231990 and 4241990

(1996)

ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN

Doc CCPRC85D11802003 (2006) (UN Human Rights Committee)

ENGLISH CASES

Referred to

in

A v B and Anr[2002] EWCA Civ 337 (UK)

McKennitt v Ash [2007] 3 WLR 194

Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK)

D v L [2004] EMLR 1 (UK)

Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK)

Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK)

-MEMORANDUM for theRESPONDENT-

R v Broadcasting Standards Commission ex parte British Broadcasting

Corporation (Liberty intervening) [2000] 3 All ER 989 (UK)

R v Loveridge[2001] EWCA Crim 973 (UK)

INDIAN CASES

Referred to in

Zimbabwe

Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231

REGIONAL AND INTERNATIONAL INSTRUMENTS

African Charter on Human and Peoplesrsquo Rights (adopted 27 June

1981entered into force 21 October 1986) (1982) 21 ILM 58

American Convention on Human Rights (adopted 22 November

1969entered into force 18 July 1978)

European Convention on Human Rights (adopted 4 November 1950

entered into force 3 September 1953)

International Covenant on Civil and Political Rights (adopted 16

-MEMORANDUM for theRESPONDENT-

December 1966 entered into force 23 March 1976) 999 UNTS 171

Universal Declaration of Human Rights (adopted 10 December 1948

UNGA Res 217 A(III)

CONSTITUTION

The Constitution of United States of America 1788

The Constitution of Argentina 1853

The Constitution of Belgium 1831

The Constitution of Brazil 1988

The Constitution Act of Finland 2000

The Constitution of India 1950

STATUTES

MISCELLANEOUS

-MEMORANDUM for theRESPONDENT-

Resolution 1003 (1993) on the ethics of journalism adopted by the

Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

Case Concerning the Arrest Warrant of 11 April 2000 (Democratic

Republic of the Congo v Belgium) (Merits) International Court of Justice

14 February 2002

21

Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary

Assembly of Council of Europe 26 July 1998 Article 14(i)

25

STATEMENT OF RELEVANT FACTS

-MEMORANDUM for theRESPONDENT-

ECONOMIC SCENARIO IN MHUGAN

1 The respondent country Republic of Mhugan is a country which obtained

independence in 1959 and since then it has had a parliamentary form of government1 Its

economy has grown rapidly since the late twentieth century fueled by a combination of

information technology industries manufacturing and financial services2

SOCIAL STATUS OF RHO

2 BansitSangnont better known by his stage name Rho is a pop music singer-

songwriter in Mhugan3 Rho after his music video for his song ldquoPokeacutePokeacuterdquo in 2011 became

very successful and was known throughout the world In early 2013 rumors began to

surface that Rho has been physically andor emotionally abusive to his wife an allegation

that Rho has vehemently denied4

COMPANIES PROVIDING INFORMATION ON SEARCH QUERIES

3 Centiplex Corporation based in Mhugan is the leading Internet services company in

Mhugan5 It runs an Internet search engine More than 80 of all search queries in Mhugan

are conducted through Centiplex and the remaining being conducted through Google6

Dexian is a global information services company based in the United States7 Its core

business is collecting aggregating analyzing and disseminating information relating to

1 Compromis para 1

2 Ibid

3 Compromis para 2

4 Compromis para 3

5 Compromis para4

6 Ibid

7 Compromis para 5

-MEMORANDUM for theRESPONDENT-

individuals8 Dexian claims to have records for almost 500 million people although those

records vary widely in their scope completeness and correctness9 The particular methods

that Dexian uses to combine sources and build individual records are not publicly known

and Dexian claims such information to be a trade secret10

4 Centiplex is a Dexian client and both buys and sells data to Dexian11 Prior to the

2013 Search Privacy Act described below no law or regulation in Mhugan restricted a

search enginersquos ability to collect disclose or use information12

ALLEGATIONS IMPOSED ON THON SANG

5 Thon Sang maintains an active blog on the Centiplex platform in Mhugan13 The ad

revenue goes to the centiplex and is not shared with the bloggers themselves14Sang is

ldquocelebrity-obsessedrdquo and his news is dedicated to Mhuganian celebrities15Sang has blogged

about the rumors of Rho abusing his wife writing that ldquoif true people should boycott Rhorsquos

music in protestrdquo16 On May 1 2013 Sang posted a voicemail that Rho left for his friend

8 Ibid

9 Ibid

10 Ibid

11 Compromis para 6

12 Ibid

13 Compromis para 7

14 Ibid

15 Compromis para 8

16 Ibid

-MEMORANDUM for theRESPONDENT-

TaurAklamit17 In the voicemail someone identifying himself as ldquoBansitrdquo said that he was

ldquofurious with my wife for not being more obedientrdquo and that ldquoI need to give her a good

smacking to show her whorsquos in chargerdquo18 Sang wrote in his post that he got this recording

from someone who tried to get into Aklamitrsquos voicemail Sang also wrote ldquoso the rumors are

true Boycott Rho and donrsquot even think about dancing the PokeacutePokeacuterdquo 19

6 The next day Sang posted again to gain more popularity- ldquoMore evidence this time

from Rhorsquos web searches which include lsquohow to control your wifersquo and lsquowhipping

techniquesrsquordquo Sang was very anxious to acquire information regarding Rho and therefore he

purchased Rhorsquos profile from Dexian for 20000 MHD which is approximately 002 Euros

7 On May 4 Rho held a press conference with his wife at his side where he stated

that he left the recorded voicemail for his friend TaurAlkamit and he would never even

dream of striking his wife He called Sang and whoever had recorded the voicemail

ldquovicious unethical and unprofessional rumor mongersrdquo who were ldquocriminals who deserve

to be punishedrdquo while his wife was busy listening to him and did not utter a word at the

conference On May 5 Sang again posted a reply stating that he was disgruntled by Rhorsquos

explanations

8 Sang clarified that the source of the voicemail had explained to him how he or she

had come across the message20 The source had entered Aklamitrsquos number by mistake

Aklamit and the source apparently shared the same password because neither had ever 17 Compromis para 9

18 Ibid

19 Ibid

20 Compromis para13

-MEMORANDUM for theRESPONDENT-

changed it from the default password for the voicemail system ldquo123456rdquo Before the source

had realized the mistake heshe clicked on the first message and heard it21 Suspecting that

the ldquoBansitrdquo on the message was in fact Rho the source then realized that this mailbox was

not hishers The source downloaded the copy of the message and sent the copy to Sang but

asking him not to reveal hisher identity22

PROVISIONS OF WIRETAP ACT

9 Mhuganian law makes it illegal under the Wiretap Act to ldquointentionally intercept or

obtain unauthorized access to any telephone or electronic communications whether in

transit or in storage23rdquo The Wiretap Act further makes it illegal for ldquoany person to

disseminate the contents of a telephone or electronic communications that the person knows

to have been unlawfully intercepted or obtained under this Act24rdquo The Wiretap Act provides

for both civil and criminal penalties Among the civil penalties are statutory damages up to

1000000 MHD The portion of the Wiretap Act described here contains an exception for

anyone acting in an official government capacity25

The Wiretap Act defines ndash

a) ldquodirectly accessedrdquo to include both (1) a link that leads directly to the material and

(2) any link that from the surrounding context reasonably indicates that it will lead

21 Ibid

22 Ibid

23 Compromis para14

24 Ibid

25 Ibid

-MEMORANDUM for theRESPONDENT-

to the prohibited material and does in fact lead to such material regardless of how

many links it takes to reach the prohibited material26

b) A search engine can meet its obligations under such an order by de-indexing the

relevant web pages but such de-indexing is not required so long as the relevant web

pages do not appear on the first page of search results27

c) The order remains in force unless and until the court rules against the plaintiff on

the Wiretap Act claim (or an appellate court rules against the plaintiff on this claim)

or the case is otherwise dismissed If the plaintiff prevails on the claim and

continues to prevail through any appeals the order effectively becomes permanent28

d) The Act provides for both civil and criminal penalties for a violation of such a

search engine order with statutory damages of up to 10000 MHD per day of

violation for a negligent violation and up to 1000000 MHD per day for an

intentional violation Criminal penalties are only available for an intentional

violation29

10 On May 8 2013 Rho sued Sang under the Wiretap Act for knowingly disseminating

the contents of unlawfully obtained communications30 Rho immediately applied for a search

engine order under the Act against Centiplex which the court granted31 The court

26 Compromis para15

27 Ibid

28 Ibid

29 Ibid

30 Compromis para16

31 ibid

-MEMORANDUM for theRESPONDENT-

ultimately ruled that Sang had violated the Wiretap Act and awarded statutory damages to

Rho of 400000 MHD In so ruling the court found under Mhuganian law that while the

sourcersquos initial hearing of the voicemail message may have been accidental the subsequent

downloading of the message to hisher computer was intentional and unauthorized under the

Wiretap Act and that furthermore because Sang had recounted on his blog all of the

relevant facts about the circumstances under which the source had acquired the voicemail

message Sang had the knowledge required to be liable under the Act32

11 Centiplex was given the search engine order by the court for disseminating the

contents of the recorded voicemail under the wiretap act and centiplex immediately began to

comply with the order entered against it33 Centiplex made an appearance in Rhorsquos case

against Sang in order to challenge the validity of the search engine order but the court

upheld the order34

12 In the same lawsuit Rho also sued the unknown source of the recorded voicemail

message as a ldquoJohn Doe35rdquo Rho subpoenaed Sang for the identity of that person Sang filed

a motion with the court to quash the subpoena asserting a privilege to hide the identity of

his source36 The court denied the motion to quash as under Mhuganian law the court does

recognize a qualified privilege not to reveal sources but only to ldquoprofessional journalistsrdquo

32 ibid

33 Compromis para1617

34 Ibid

35 Compromis para18

36 Ibid

-MEMORANDUM for theRESPONDENT-

but Sang was not a professional journalist as he did not disseminate the information to the

public for the gain of livelihood as the revenue goes to the CentiplexHowever the court did

grant a stay of the subpoena

2013 SEARCH PRIVACY ACT

13 On May 15 2013 Mhugan enacted the Search Privacy Act which makes it unlawful

for a search engine to sell information about a personrsquos search queries without that personrsquos

consent37

a) For purposes of this Act a ldquosalerdquo is defined to be a ldquotransfer in exchange for

anything of valuerdquo

b) Information is considered to be information ldquoabout a personrsquos search queriesrdquo if

individual search queries are associated with ldquoany identifier including without

limitation a name address phone number email address government identification

number date of birth or IP addressrdquo

c) The Act does not apply to non-sale transfers of such information nor does it apply

to any subsequent transfers of the same information after an initial transfer by the

search engine whether or not those subsequent transfers are sales

d) The Act contains explicit exceptions for disclosures to law enforcement agencies

pursuant to a warrant subpoena or court order and disclosures incident to the

search enginersquos ordinary course of business

e) The Act provides for compensatory or statutory damages at the plaintiffrsquos election

as well as punitive damages for a ldquowillful violationrdquo

f) The Act is scheduled to become effective on May 1 201438

37 Compromis para19

38 ibid

-MEMORANDUM for theRESPONDENT-

14 On May 20 2013 Centiplex sued in Mhugan to have the Search Privacy Act

declared invalid under the laws and Constitution of Mhugan39 But the court held the search

privacy act to be valid40

15 All of the rulings described above were appealed to the Mhugan Supreme Court the

highest appellate court in Mhugan and the Mhugan Supreme Court dismissed all of the

appeals41

16 Sang and Centiplex have challenged all of the following in the Universal Court of

Human Rights42

a) the damages imposed on Sang for disseminating the recorded voicemail

b) the subpoena to Sang to disclose the source of the recorded voicemail

c) the order against Centiplex requiring that webpages that link to the recorded

voicemail including Sangrsquos blog posts never appear on the first page of search

results

d) the validity of the 2013 Search Privacy Act43

39 Compromis para 20

40 Ibid

41 Compromis para21

42 Compromis para 22

43 Ibid

-MEMORANDUM for theRESPONDENT-

17 No law domestic or international restricts either Sangrsquos or Centiplexrsquos standing to

bring these challenges44 Both Sangrsquos and Centiplexrsquos positions have been rejected on the

merits in the domestic courts of Mhugan and all appeals or other legal remedies within the

Mhuganian court system have been exhausted45

STATEMENT OF JURISDICTION

CASE CONCERNING RIGHTS AND OBLIGATIONS UNDER THE UDHR

SANG AND CENTIPLEX Applicants

v

44 Compromis para 23

45 Ibid

-MEMORANDUM for theRESPONDENT-

THE REPUBLIC OF MHUGAN Respondent

ldquoSang and Centiplex (the Applicants) and the Republic of Mhugan (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 Mhuganian means the

Universal Freedom of Expression Court has jurisdiction in this matterrdquo

IN THE UNIVERSAL FREEDOM OF EXPRESSION COURT

THE RESPONDENT MOST HUMBLY AND RESPECTFULLY SUBMITS TO THE

JURISDICTION OF THIS HONrsquoBLE COURT

QUESTIONSPRESENTED

THE FOLLOWING QUESTIONS HAVE BEEN PRESENTED BEFORE THE COURT

FOR ITS DETERMINATION

1 WHETHER THE DAMAGES IMPOSED ON THE APPLICANT ARE CONSISTENT

WITH THE PROVISIONS OF THE UDHR

-MEMORANDUM for theRESPONDENT-

2 WHETHER THE REQUIREMENT TO DISCLOSE THE SOURCE OF THE

RECORDED VOICEMAIL IS CONSISTENT WITH THE PROVISIONS OF THE

UDHR

3 WHETHER THE SECTION OF THE WIRETAP ACT THAT PROVIDES FOR A

SPECIAL PROVISIONAL REMEDY IS CONSISTENT WITH THE UDHR

4 WHETHER THE PROVISIONS OF THE 2013 SEARCH PRIVACY ACT ARE

CONSISTENT WITH THE UDHR

SUMMARYOF ARGUMENTS

A The courts finding imposed damages of 400000 MHD on the Applicant First the

requirement does not infringe the right to freedom of expression of the Applicant Herein

firstly Respondent submits that the impugned requirement does not restrict the right to

freedom of expression and secondly it does not cause a chilling effect Second property

rights under Article 17 are not infringed because the Applicant cannot enjoy his right by

violating ones right under Article 12 The allegation emphasised by the Applicant does not

contribute to public debate as there are no facts substantiating the allegation Third the

-MEMORANDUM for theRESPONDENT-

Respondent possess a reasonable expectation of privacy under Article 12 which has been

violated after the dissemination of the unauthorised information took place In any event the

restriction is permissible under Article 29(2) of the UDHR It is prescribedby law under the

Wiretap Act The situation in Mhugan shows that the Wiretap Act is clearly in pursuit of the

legitimate aims of serves to protect an individualrsquos right from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR The restriction is necessary in a

democratic society as it corresponds to a pressing social need and is proportionate to the

legitimate aims

B The requirement by the court has mandated the Applicant to disclose the identity of

the source of the voicemail and it does not contravene the rights to freedom of expression

enshrined in Article 19 of the UDHR Herein firstly Article 19 does not include the right to

anonymity secondly it does not cause a chilling effect and finally the requirement does

not constitute prior restraint

Further the requirement does notcontravene the right to privacy guaranteed under Article 12

of the UDHR because there is no actual subjective expectation of privacy which is

objectively reasonable Finally theright to remedy enshrined in Article 8 of the UDHR has

not been violated because the Respondent has a right to effective remedy which is possible

only when the Applicant will disclose the name of the source of the information that

infiltrated the voicemailIn any event these measures are valid limitations under Article

29(2) of the UDHR Theysatisfy the three-tiered test of legality legitimacy and necessity

C The requirement by the Court mandated Centiplex to remove the impugned

information from the first page of search result First it does not contravene the right to

expression enshrined in Article 19 of the UDHR Herein firstly the restriction doesnt

impose filtering or prior restraint secondly it does not create a Chilling effect Second the

-MEMORANDUM for theRESPONDENT-

right to privacy guaranteed under Article 12 is violated as it has a superseding effect on

Applicants right guaranteed under Article 19 In any event these measures are valid

limitations under Article 29(2) of the UDHR They satisfy the three-tier test of legality

legitimacy and necessity

D The requirement under the 2013 Search Privacy Act is consistent with the UDHR

First the requirement does not contravene right to privacy enshrined in Article 12 of the

UDHRItexemplifies how in certain circumstances the right to privacy outweighs the right

to freedom of expression Second it does not contravene Article 19 as it complies with the

three-tier test under Article 29(2) The restriction is prescribed by law as it is made under the

authority of the SPA It is pursuant to the legitimate aim of protection of rights of others as

the Respondent possesses a reasonable expectation of privacy Further the restriction is

necessary in ademocratic society as the dissemination does not warrant to a debate of

general interest

ARGUMENTS

A THE DAMAGES IMPOSED ON THE APPLICANT ARE JUST FAIR AND

CONSISTENT WITH THE PROVISIONS OF THE UDHR

1 The courts finding imposed damages of 400000 MHD46 on the Applicant

Respondent submits that this requirement is consistent with the right to freedom of speech

and expression under Article 19 [I] right to property under Article 17 [II] and valid under

46 Compromis para16

-MEMORANDUM for theRESPONDENT-

Article 29(2) [III] Moreover the dissemination was privacy intrusive under Article 12

UDHR [IV]

I The requirement is not a restriction on Article 19 UDHR

2 Article 19 guarantees ldquothe right to freedom of opinion and expression hellip without

interferencehellipthrough any mediardquo47 Respondent submits that the impugned requirement

does not restrict the right to freedom of expression [a] and does not cause a chilling effect

[b]

a) The requirement does not restrict the freedom of expression

3 Notwithstanding the pressrsquo vital ldquowatchdogrdquo role48 journalists cannot be released

from their duty to obey the ordinary law on the basis that Article 19 of the UDHR affords

them protection49 In Stoll v Switzerland the ECtHR held that there is no lsquowholly

unrestricted freedom of expression even with respect to press reporting of matters of serious

public concernrsquo50 The Respondent emphasises the Courtrsquos sentiment that journalistic

ethics51 play a considerably important role lsquogiven the influence wielded by the media in

contemporary societyrsquo52 It is no excuse to say that Sangrsquos duty as a journalist compelled

47 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19 See also International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

48 Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government Ethics(The ANNALS of the American Academy of Political and Social Science1995 )

49Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

50Stoll (n 49) BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR 20 May 1999) 65

51 Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5 October 2013

52Stoll (n 49) 104

-MEMORANDUM for theRESPONDENT-

him to commit an unlawful act53 when in fact this duty could have been discharged through

legal and ethical means54

4 Moreover it is established that ldquonews broadcasting should be based on truthfulness

ensured by the appropriate means of verification and proof and impartiality in

presentation description and narrationrdquo55 Sang clearly did not follow these standards56

Having in mind that ldquoduties and responsibilities which accompany the exercise of the right

tofreedom of expression by media professionals assume special significance in situations

ofconflict and tensionrdquo57 it can be manifestly perceived that Rho had sent the voicemailonly

to let off some steam to his good friend Taur58 which proves prima faciethere was no such

situation prevailing and dissemination does not meet these standards

b) The impugned requirement does not cause a lsquoChilling effectrsquo

5 Ultimately the Respondent reiterates that there is no interference with the freedom

of the press59 Further the damages60 imposed upon Sang do not amount to a form of

censorship61 intended to discourage the press from expressing criticism62 Requirement to

53 Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt accessed 5 October 2013

54 Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013

55 Resolution 1003 (1993) on the ethics of journalism adopted by the Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

56 Compromis para13

57Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

58 Compromis para11

59Freedom of the Press lthttpwwwpuclorgfrom-archivesMediafreedom-presshtmgt accessed 9 October 210360 Compromis para 16

61 Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October 2013

62Stoll (n 49) 154

-MEMORANDUM for theRESPONDENT-

pay damages was merely to discourage journalist for adopting unlawful methods for

obtaining information63 protect right to privacy enshrined under Article 12 UDHR and

public order64 and is wholly proportionate in this instance The safeguard afforded by

freedom of speech in relation to journalistic reporting on issues of general interest is subject

to the journalistacting in good faith and in accordance with the ethics of journalism65

Regardless of the Applicantrsquos misguided beliefs and best intentions his profession is no

source of immunity or impunity66 the road to perdition is paved with bona-fide intentions

II The requirement does not restrict Article 17 UDHR

6 Sang had doubtlessly breached his lsquoduties and responsibilitiesrsquo67 the ethics of

journalism68 and did not act lsquoin good faithrsquo69Besides the information lsquodoes not bear on

matters of general importancersquo70 and its dissemination is an abuse of the pressrsquos ldquowatchdogrdquo

role71To enhance this contention reliance is placed upon three groundsFirst while earlier

63 Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-

codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

64 Public Order lthttpwwwusiporgguiding-principles-stabilization-and-reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October 2013

65Stoll (n 32) 103

66Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) International Court of Justice 14 February 2002

67The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

68BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20 May 1999)

69Pedersen (n 44)

70Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

71Warren(n 49)

-MEMORANDUM for theRESPONDENT-

decisions of the Strasbourg courts tend not to tolerate high damages awards72 none of them

involved the scale of character assassination like in this case73Second spousal abuse74 is a

serious allegation aimed at scandalising Rhorsquos reputation for negative publicity75 purposes

and third such an allegation does not contribute to public debate where there are no facts

substantiating the allegation76

7 Furthermore such an allegation is solely speculative and was coldly calculated to

inflict maximum damage to Rhorsquos reputation77 Rhorsquos loss must be seen in the context of

his negative publicity78 and its impact on his pecuniary loss arising from the protest79 In

addition to that the grief over loss of reputation and honour which was clearly compounded

by the tasteless spousal abuse allegations80 Rho has absolute right to ask for damages since

his right to privacy is in issue and since ldquothe possibility of taking an action under civil law

should be guaranteed to enable a victim to claim possible damages for invasion of

privacyrdquo81 Furthermore the damages are reasonable and does not violate right to enjoyment

of property of the Applicant

72Jersild v Denmark App no 159808 (ECHR 23 September 1994)

73Clarification 10

74Domestic Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt accessed 6 October 2013

75 What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October 2013

76 Compromis para12

77 Compromis para13

78 Clarification 10

79 Compromis para9

80Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June 2007)

81 Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary Assembly of Council of Europe 26 July 1998 Article 14(i)

-MEMORANDUM for theRESPONDENT-

III In any event the requirement is permissible under Article 29(2) UDHR

a) The requirement is prescribed by law

8 Imposing damages on Sang for breach of the Wiretap Act82 is a justified interference

with his freedom of expression The interference in question is validly provided by law and

serves to protect an individualrsquos right to protection from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR

b) The requirement is in pursuance of legitimate aims

9 The ECtHR in Handyside v United Kingdom83 acknowledged that lsquostate authorities

are in principle in a better position than the international judge to give an opinion on the

exact content of these requirements as well as on the necessity of a restriction of a

penaltyrsquo84 Whether a restriction is necessary in the circumstances is therefore an inquiry

based on the facts and circumstances prevailing in the country concerned which the national

authorities are in a better position to undertake85 For the foregoing reasons the requirement

is in pursuance of legitimate aims

c) The restriction is necessary in a democratic society

10 The thrust of the Mhugan courtrsquos reasoning in imposing damages on Sang was

directed at his dissemination of lsquounlawfully obtained materialrsquo86 ie Rhorsquos recorded

82 Compromis para14

83 App no 549372( ECHR 7 December 1976)

84Handyside(n 28) at [48] The Sunday Times (n 8) Joint Dissenting Opinion of Judges Wiarda Cremona Thor Vilhjalmsson Ryssdal Ganshof van der Meersch Sir Gerald Fitzmaurice Bindschedler-Robert Liesh and Matscher

85Case of Klass and Others v Germany App no 502971(EHRR 6 September 1978)

86 Compromis para16

-MEMORANDUM for theRESPONDENT-

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 12: Oxford Respondent

Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

Kruslin v France App no 1180185(ECHR 24 April 1990)

Huvig v France App No 1110584( ECHR 24 April 1990)

Burghartz v Switzerland (1994) 18 EHRR 101

Von Hannover v Germany (2005) 40 EHRR 1

Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002)

Nebraska Press Association v Stuart427 US 539 559 (1976)

PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001)

Peck v United Kingdom (2003) 36 EHRR 41

New York Times Co v Sullivan 376 US 254 (1964)

Lingens v Austria App no 981582 (ECtHR 8 July 1986)

Friedl v Austria 1522589 (ECHR 31 January 1995)

PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001)

Peck v United Kingdom (2003) 36 EHRR 41

Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR

18 January 2011)

-MEMORANDUM for theRESPONDENT-

X and Y v Netherlands App no 897880(ECHR 26 March 1985)

ETK v News Group Newspapers [2011] EWCA Civ 439

Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no

5422400

(ECtHR 12 December 2000)

Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902

(ECtHR

13 May 2003)

Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006)

Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR

28 March 1990)

HRH Princess of Wales v MGN Newspapers App no1306997 (ECtHR 11

December 2003)

Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July

2009)

-MEMORANDUM for theRESPONDENT-

Klass and Others v Germany (App no 502971)Application

No 502971(ECHR 6 September1978)

Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25

February 1992)

Plon(socieacuteteacute) v FranceApp no 5814800(ECHR 18 May 2004)

Worm v Austria (1997) 25 EHRR 454

X and Y v Netherlands App no897880(ECHR 26 March 1985)

Funke v France App no 1082884(ECHR 25 February 1993) Keegan v

Ireland (1994) 18 EHRR 342

Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

UNITED STATES

Referred to in

McIntyre v Ohio Elections Commission 514 US 334 (1995)

Buckley v Valeo424 US 1 (1976)

Branzburg v Hayes 408 US 665

-MEMORANDUM for theRESPONDENT-

OShea v Littleton 414 US 488 (1974)

Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

Laird v Tatum 408 US 1 (1972)

Meese v Keene 481 US 465 (1987)

Niemotko v Maryland 340 US 268 (1951)

Shuttleworth v Birmingham 394 US 147 (1969)

Frisby v Schultz 487 US 474 (1988)

Katz v United States 389 US 347 (1967)

Acrara v Cloud Books Inc478 US 697 (1986)

Alexander v US 509 US 544 (1993)

Gertz v Welch 418 US 323 (1974)

Time Inc v Firestone 424 US 448 (1976)

Bartnicki v Vopper532 US 514 (2001)

Hutchinson v Proxmire443 US 111 (1979)

Wolston v Readerrsquos Digest Association Inc443 US 157 (1979)

Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981)

-MEMORANDUM for theRESPONDENT-

Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987)

Cox v New Hampshire 312 US 569 (1941)

Freedman v Maryland 380 US 51 (1965)

Madsen v Womenrsquos Health CenterInc et al 512 US 753 (1994)

United States v OBrien 391 US 367 (1968)

Turner Broadcasting System Inc v FCC 512 US 622 (1994)

Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton

536 US 150 (2002)

Ward v Rock Against Racism 491 US 781 (1989)

Galella v Onassis 487 F 2d 986 (1973)

Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

Bartnicki v Vopper532 US 514 (2001)

R v Oakes [1986] 1 SCR 103

New York Times Co v United States 403 US 713

Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186

(1984)

-MEMORANDUM for theRESPONDENT-

HUMAN RIGHTS COMMITTEE

Referred to in

Aduayom Diasso and Dobou v Togo Communications Nos 4221990

4231990

and 4241990 UN Doc CCPRC51D4221990 4231990 and 4241990

(1996)

ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN

Doc CCPRC85D11802003 (2006) (UN Human Rights Committee)

ENGLISH CASES

Referred to

in

A v B and Anr[2002] EWCA Civ 337 (UK)

McKennitt v Ash [2007] 3 WLR 194

Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK)

D v L [2004] EMLR 1 (UK)

Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK)

Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK)

-MEMORANDUM for theRESPONDENT-

R v Broadcasting Standards Commission ex parte British Broadcasting

Corporation (Liberty intervening) [2000] 3 All ER 989 (UK)

R v Loveridge[2001] EWCA Crim 973 (UK)

INDIAN CASES

Referred to in

Zimbabwe

Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231

REGIONAL AND INTERNATIONAL INSTRUMENTS

African Charter on Human and Peoplesrsquo Rights (adopted 27 June

1981entered into force 21 October 1986) (1982) 21 ILM 58

American Convention on Human Rights (adopted 22 November

1969entered into force 18 July 1978)

European Convention on Human Rights (adopted 4 November 1950

entered into force 3 September 1953)

International Covenant on Civil and Political Rights (adopted 16

-MEMORANDUM for theRESPONDENT-

December 1966 entered into force 23 March 1976) 999 UNTS 171

Universal Declaration of Human Rights (adopted 10 December 1948

UNGA Res 217 A(III)

CONSTITUTION

The Constitution of United States of America 1788

The Constitution of Argentina 1853

The Constitution of Belgium 1831

The Constitution of Brazil 1988

The Constitution Act of Finland 2000

The Constitution of India 1950

STATUTES

MISCELLANEOUS

-MEMORANDUM for theRESPONDENT-

Resolution 1003 (1993) on the ethics of journalism adopted by the

Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

Case Concerning the Arrest Warrant of 11 April 2000 (Democratic

Republic of the Congo v Belgium) (Merits) International Court of Justice

14 February 2002

21

Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary

Assembly of Council of Europe 26 July 1998 Article 14(i)

25

STATEMENT OF RELEVANT FACTS

-MEMORANDUM for theRESPONDENT-

ECONOMIC SCENARIO IN MHUGAN

1 The respondent country Republic of Mhugan is a country which obtained

independence in 1959 and since then it has had a parliamentary form of government1 Its

economy has grown rapidly since the late twentieth century fueled by a combination of

information technology industries manufacturing and financial services2

SOCIAL STATUS OF RHO

2 BansitSangnont better known by his stage name Rho is a pop music singer-

songwriter in Mhugan3 Rho after his music video for his song ldquoPokeacutePokeacuterdquo in 2011 became

very successful and was known throughout the world In early 2013 rumors began to

surface that Rho has been physically andor emotionally abusive to his wife an allegation

that Rho has vehemently denied4

COMPANIES PROVIDING INFORMATION ON SEARCH QUERIES

3 Centiplex Corporation based in Mhugan is the leading Internet services company in

Mhugan5 It runs an Internet search engine More than 80 of all search queries in Mhugan

are conducted through Centiplex and the remaining being conducted through Google6

Dexian is a global information services company based in the United States7 Its core

business is collecting aggregating analyzing and disseminating information relating to

1 Compromis para 1

2 Ibid

3 Compromis para 2

4 Compromis para 3

5 Compromis para4

6 Ibid

7 Compromis para 5

-MEMORANDUM for theRESPONDENT-

individuals8 Dexian claims to have records for almost 500 million people although those

records vary widely in their scope completeness and correctness9 The particular methods

that Dexian uses to combine sources and build individual records are not publicly known

and Dexian claims such information to be a trade secret10

4 Centiplex is a Dexian client and both buys and sells data to Dexian11 Prior to the

2013 Search Privacy Act described below no law or regulation in Mhugan restricted a

search enginersquos ability to collect disclose or use information12

ALLEGATIONS IMPOSED ON THON SANG

5 Thon Sang maintains an active blog on the Centiplex platform in Mhugan13 The ad

revenue goes to the centiplex and is not shared with the bloggers themselves14Sang is

ldquocelebrity-obsessedrdquo and his news is dedicated to Mhuganian celebrities15Sang has blogged

about the rumors of Rho abusing his wife writing that ldquoif true people should boycott Rhorsquos

music in protestrdquo16 On May 1 2013 Sang posted a voicemail that Rho left for his friend

8 Ibid

9 Ibid

10 Ibid

11 Compromis para 6

12 Ibid

13 Compromis para 7

14 Ibid

15 Compromis para 8

16 Ibid

-MEMORANDUM for theRESPONDENT-

TaurAklamit17 In the voicemail someone identifying himself as ldquoBansitrdquo said that he was

ldquofurious with my wife for not being more obedientrdquo and that ldquoI need to give her a good

smacking to show her whorsquos in chargerdquo18 Sang wrote in his post that he got this recording

from someone who tried to get into Aklamitrsquos voicemail Sang also wrote ldquoso the rumors are

true Boycott Rho and donrsquot even think about dancing the PokeacutePokeacuterdquo 19

6 The next day Sang posted again to gain more popularity- ldquoMore evidence this time

from Rhorsquos web searches which include lsquohow to control your wifersquo and lsquowhipping

techniquesrsquordquo Sang was very anxious to acquire information regarding Rho and therefore he

purchased Rhorsquos profile from Dexian for 20000 MHD which is approximately 002 Euros

7 On May 4 Rho held a press conference with his wife at his side where he stated

that he left the recorded voicemail for his friend TaurAlkamit and he would never even

dream of striking his wife He called Sang and whoever had recorded the voicemail

ldquovicious unethical and unprofessional rumor mongersrdquo who were ldquocriminals who deserve

to be punishedrdquo while his wife was busy listening to him and did not utter a word at the

conference On May 5 Sang again posted a reply stating that he was disgruntled by Rhorsquos

explanations

8 Sang clarified that the source of the voicemail had explained to him how he or she

had come across the message20 The source had entered Aklamitrsquos number by mistake

Aklamit and the source apparently shared the same password because neither had ever 17 Compromis para 9

18 Ibid

19 Ibid

20 Compromis para13

-MEMORANDUM for theRESPONDENT-

changed it from the default password for the voicemail system ldquo123456rdquo Before the source

had realized the mistake heshe clicked on the first message and heard it21 Suspecting that

the ldquoBansitrdquo on the message was in fact Rho the source then realized that this mailbox was

not hishers The source downloaded the copy of the message and sent the copy to Sang but

asking him not to reveal hisher identity22

PROVISIONS OF WIRETAP ACT

9 Mhuganian law makes it illegal under the Wiretap Act to ldquointentionally intercept or

obtain unauthorized access to any telephone or electronic communications whether in

transit or in storage23rdquo The Wiretap Act further makes it illegal for ldquoany person to

disseminate the contents of a telephone or electronic communications that the person knows

to have been unlawfully intercepted or obtained under this Act24rdquo The Wiretap Act provides

for both civil and criminal penalties Among the civil penalties are statutory damages up to

1000000 MHD The portion of the Wiretap Act described here contains an exception for

anyone acting in an official government capacity25

The Wiretap Act defines ndash

a) ldquodirectly accessedrdquo to include both (1) a link that leads directly to the material and

(2) any link that from the surrounding context reasonably indicates that it will lead

21 Ibid

22 Ibid

23 Compromis para14

24 Ibid

25 Ibid

-MEMORANDUM for theRESPONDENT-

to the prohibited material and does in fact lead to such material regardless of how

many links it takes to reach the prohibited material26

b) A search engine can meet its obligations under such an order by de-indexing the

relevant web pages but such de-indexing is not required so long as the relevant web

pages do not appear on the first page of search results27

c) The order remains in force unless and until the court rules against the plaintiff on

the Wiretap Act claim (or an appellate court rules against the plaintiff on this claim)

or the case is otherwise dismissed If the plaintiff prevails on the claim and

continues to prevail through any appeals the order effectively becomes permanent28

d) The Act provides for both civil and criminal penalties for a violation of such a

search engine order with statutory damages of up to 10000 MHD per day of

violation for a negligent violation and up to 1000000 MHD per day for an

intentional violation Criminal penalties are only available for an intentional

violation29

10 On May 8 2013 Rho sued Sang under the Wiretap Act for knowingly disseminating

the contents of unlawfully obtained communications30 Rho immediately applied for a search

engine order under the Act against Centiplex which the court granted31 The court

26 Compromis para15

27 Ibid

28 Ibid

29 Ibid

30 Compromis para16

31 ibid

-MEMORANDUM for theRESPONDENT-

ultimately ruled that Sang had violated the Wiretap Act and awarded statutory damages to

Rho of 400000 MHD In so ruling the court found under Mhuganian law that while the

sourcersquos initial hearing of the voicemail message may have been accidental the subsequent

downloading of the message to hisher computer was intentional and unauthorized under the

Wiretap Act and that furthermore because Sang had recounted on his blog all of the

relevant facts about the circumstances under which the source had acquired the voicemail

message Sang had the knowledge required to be liable under the Act32

11 Centiplex was given the search engine order by the court for disseminating the

contents of the recorded voicemail under the wiretap act and centiplex immediately began to

comply with the order entered against it33 Centiplex made an appearance in Rhorsquos case

against Sang in order to challenge the validity of the search engine order but the court

upheld the order34

12 In the same lawsuit Rho also sued the unknown source of the recorded voicemail

message as a ldquoJohn Doe35rdquo Rho subpoenaed Sang for the identity of that person Sang filed

a motion with the court to quash the subpoena asserting a privilege to hide the identity of

his source36 The court denied the motion to quash as under Mhuganian law the court does

recognize a qualified privilege not to reveal sources but only to ldquoprofessional journalistsrdquo

32 ibid

33 Compromis para1617

34 Ibid

35 Compromis para18

36 Ibid

-MEMORANDUM for theRESPONDENT-

but Sang was not a professional journalist as he did not disseminate the information to the

public for the gain of livelihood as the revenue goes to the CentiplexHowever the court did

grant a stay of the subpoena

2013 SEARCH PRIVACY ACT

13 On May 15 2013 Mhugan enacted the Search Privacy Act which makes it unlawful

for a search engine to sell information about a personrsquos search queries without that personrsquos

consent37

a) For purposes of this Act a ldquosalerdquo is defined to be a ldquotransfer in exchange for

anything of valuerdquo

b) Information is considered to be information ldquoabout a personrsquos search queriesrdquo if

individual search queries are associated with ldquoany identifier including without

limitation a name address phone number email address government identification

number date of birth or IP addressrdquo

c) The Act does not apply to non-sale transfers of such information nor does it apply

to any subsequent transfers of the same information after an initial transfer by the

search engine whether or not those subsequent transfers are sales

d) The Act contains explicit exceptions for disclosures to law enforcement agencies

pursuant to a warrant subpoena or court order and disclosures incident to the

search enginersquos ordinary course of business

e) The Act provides for compensatory or statutory damages at the plaintiffrsquos election

as well as punitive damages for a ldquowillful violationrdquo

f) The Act is scheduled to become effective on May 1 201438

37 Compromis para19

38 ibid

-MEMORANDUM for theRESPONDENT-

14 On May 20 2013 Centiplex sued in Mhugan to have the Search Privacy Act

declared invalid under the laws and Constitution of Mhugan39 But the court held the search

privacy act to be valid40

15 All of the rulings described above were appealed to the Mhugan Supreme Court the

highest appellate court in Mhugan and the Mhugan Supreme Court dismissed all of the

appeals41

16 Sang and Centiplex have challenged all of the following in the Universal Court of

Human Rights42

a) the damages imposed on Sang for disseminating the recorded voicemail

b) the subpoena to Sang to disclose the source of the recorded voicemail

c) the order against Centiplex requiring that webpages that link to the recorded

voicemail including Sangrsquos blog posts never appear on the first page of search

results

d) the validity of the 2013 Search Privacy Act43

39 Compromis para 20

40 Ibid

41 Compromis para21

42 Compromis para 22

43 Ibid

-MEMORANDUM for theRESPONDENT-

17 No law domestic or international restricts either Sangrsquos or Centiplexrsquos standing to

bring these challenges44 Both Sangrsquos and Centiplexrsquos positions have been rejected on the

merits in the domestic courts of Mhugan and all appeals or other legal remedies within the

Mhuganian court system have been exhausted45

STATEMENT OF JURISDICTION

CASE CONCERNING RIGHTS AND OBLIGATIONS UNDER THE UDHR

SANG AND CENTIPLEX Applicants

v

44 Compromis para 23

45 Ibid

-MEMORANDUM for theRESPONDENT-

THE REPUBLIC OF MHUGAN Respondent

ldquoSang and Centiplex (the Applicants) and the Republic of Mhugan (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 Mhuganian means the

Universal Freedom of Expression Court has jurisdiction in this matterrdquo

IN THE UNIVERSAL FREEDOM OF EXPRESSION COURT

THE RESPONDENT MOST HUMBLY AND RESPECTFULLY SUBMITS TO THE

JURISDICTION OF THIS HONrsquoBLE COURT

QUESTIONSPRESENTED

THE FOLLOWING QUESTIONS HAVE BEEN PRESENTED BEFORE THE COURT

FOR ITS DETERMINATION

1 WHETHER THE DAMAGES IMPOSED ON THE APPLICANT ARE CONSISTENT

WITH THE PROVISIONS OF THE UDHR

-MEMORANDUM for theRESPONDENT-

2 WHETHER THE REQUIREMENT TO DISCLOSE THE SOURCE OF THE

RECORDED VOICEMAIL IS CONSISTENT WITH THE PROVISIONS OF THE

UDHR

3 WHETHER THE SECTION OF THE WIRETAP ACT THAT PROVIDES FOR A

SPECIAL PROVISIONAL REMEDY IS CONSISTENT WITH THE UDHR

4 WHETHER THE PROVISIONS OF THE 2013 SEARCH PRIVACY ACT ARE

CONSISTENT WITH THE UDHR

SUMMARYOF ARGUMENTS

A The courts finding imposed damages of 400000 MHD on the Applicant First the

requirement does not infringe the right to freedom of expression of the Applicant Herein

firstly Respondent submits that the impugned requirement does not restrict the right to

freedom of expression and secondly it does not cause a chilling effect Second property

rights under Article 17 are not infringed because the Applicant cannot enjoy his right by

violating ones right under Article 12 The allegation emphasised by the Applicant does not

contribute to public debate as there are no facts substantiating the allegation Third the

-MEMORANDUM for theRESPONDENT-

Respondent possess a reasonable expectation of privacy under Article 12 which has been

violated after the dissemination of the unauthorised information took place In any event the

restriction is permissible under Article 29(2) of the UDHR It is prescribedby law under the

Wiretap Act The situation in Mhugan shows that the Wiretap Act is clearly in pursuit of the

legitimate aims of serves to protect an individualrsquos right from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR The restriction is necessary in a

democratic society as it corresponds to a pressing social need and is proportionate to the

legitimate aims

B The requirement by the court has mandated the Applicant to disclose the identity of

the source of the voicemail and it does not contravene the rights to freedom of expression

enshrined in Article 19 of the UDHR Herein firstly Article 19 does not include the right to

anonymity secondly it does not cause a chilling effect and finally the requirement does

not constitute prior restraint

Further the requirement does notcontravene the right to privacy guaranteed under Article 12

of the UDHR because there is no actual subjective expectation of privacy which is

objectively reasonable Finally theright to remedy enshrined in Article 8 of the UDHR has

not been violated because the Respondent has a right to effective remedy which is possible

only when the Applicant will disclose the name of the source of the information that

infiltrated the voicemailIn any event these measures are valid limitations under Article

29(2) of the UDHR Theysatisfy the three-tiered test of legality legitimacy and necessity

C The requirement by the Court mandated Centiplex to remove the impugned

information from the first page of search result First it does not contravene the right to

expression enshrined in Article 19 of the UDHR Herein firstly the restriction doesnt

impose filtering or prior restraint secondly it does not create a Chilling effect Second the

-MEMORANDUM for theRESPONDENT-

right to privacy guaranteed under Article 12 is violated as it has a superseding effect on

Applicants right guaranteed under Article 19 In any event these measures are valid

limitations under Article 29(2) of the UDHR They satisfy the three-tier test of legality

legitimacy and necessity

D The requirement under the 2013 Search Privacy Act is consistent with the UDHR

First the requirement does not contravene right to privacy enshrined in Article 12 of the

UDHRItexemplifies how in certain circumstances the right to privacy outweighs the right

to freedom of expression Second it does not contravene Article 19 as it complies with the

three-tier test under Article 29(2) The restriction is prescribed by law as it is made under the

authority of the SPA It is pursuant to the legitimate aim of protection of rights of others as

the Respondent possesses a reasonable expectation of privacy Further the restriction is

necessary in ademocratic society as the dissemination does not warrant to a debate of

general interest

ARGUMENTS

A THE DAMAGES IMPOSED ON THE APPLICANT ARE JUST FAIR AND

CONSISTENT WITH THE PROVISIONS OF THE UDHR

1 The courts finding imposed damages of 400000 MHD46 on the Applicant

Respondent submits that this requirement is consistent with the right to freedom of speech

and expression under Article 19 [I] right to property under Article 17 [II] and valid under

46 Compromis para16

-MEMORANDUM for theRESPONDENT-

Article 29(2) [III] Moreover the dissemination was privacy intrusive under Article 12

UDHR [IV]

I The requirement is not a restriction on Article 19 UDHR

2 Article 19 guarantees ldquothe right to freedom of opinion and expression hellip without

interferencehellipthrough any mediardquo47 Respondent submits that the impugned requirement

does not restrict the right to freedom of expression [a] and does not cause a chilling effect

[b]

a) The requirement does not restrict the freedom of expression

3 Notwithstanding the pressrsquo vital ldquowatchdogrdquo role48 journalists cannot be released

from their duty to obey the ordinary law on the basis that Article 19 of the UDHR affords

them protection49 In Stoll v Switzerland the ECtHR held that there is no lsquowholly

unrestricted freedom of expression even with respect to press reporting of matters of serious

public concernrsquo50 The Respondent emphasises the Courtrsquos sentiment that journalistic

ethics51 play a considerably important role lsquogiven the influence wielded by the media in

contemporary societyrsquo52 It is no excuse to say that Sangrsquos duty as a journalist compelled

47 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19 See also International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

48 Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government Ethics(The ANNALS of the American Academy of Political and Social Science1995 )

49Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

50Stoll (n 49) BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR 20 May 1999) 65

51 Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5 October 2013

52Stoll (n 49) 104

-MEMORANDUM for theRESPONDENT-

him to commit an unlawful act53 when in fact this duty could have been discharged through

legal and ethical means54

4 Moreover it is established that ldquonews broadcasting should be based on truthfulness

ensured by the appropriate means of verification and proof and impartiality in

presentation description and narrationrdquo55 Sang clearly did not follow these standards56

Having in mind that ldquoduties and responsibilities which accompany the exercise of the right

tofreedom of expression by media professionals assume special significance in situations

ofconflict and tensionrdquo57 it can be manifestly perceived that Rho had sent the voicemailonly

to let off some steam to his good friend Taur58 which proves prima faciethere was no such

situation prevailing and dissemination does not meet these standards

b) The impugned requirement does not cause a lsquoChilling effectrsquo

5 Ultimately the Respondent reiterates that there is no interference with the freedom

of the press59 Further the damages60 imposed upon Sang do not amount to a form of

censorship61 intended to discourage the press from expressing criticism62 Requirement to

53 Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt accessed 5 October 2013

54 Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013

55 Resolution 1003 (1993) on the ethics of journalism adopted by the Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

56 Compromis para13

57Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

58 Compromis para11

59Freedom of the Press lthttpwwwpuclorgfrom-archivesMediafreedom-presshtmgt accessed 9 October 210360 Compromis para 16

61 Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October 2013

62Stoll (n 49) 154

-MEMORANDUM for theRESPONDENT-

pay damages was merely to discourage journalist for adopting unlawful methods for

obtaining information63 protect right to privacy enshrined under Article 12 UDHR and

public order64 and is wholly proportionate in this instance The safeguard afforded by

freedom of speech in relation to journalistic reporting on issues of general interest is subject

to the journalistacting in good faith and in accordance with the ethics of journalism65

Regardless of the Applicantrsquos misguided beliefs and best intentions his profession is no

source of immunity or impunity66 the road to perdition is paved with bona-fide intentions

II The requirement does not restrict Article 17 UDHR

6 Sang had doubtlessly breached his lsquoduties and responsibilitiesrsquo67 the ethics of

journalism68 and did not act lsquoin good faithrsquo69Besides the information lsquodoes not bear on

matters of general importancersquo70 and its dissemination is an abuse of the pressrsquos ldquowatchdogrdquo

role71To enhance this contention reliance is placed upon three groundsFirst while earlier

63 Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-

codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

64 Public Order lthttpwwwusiporgguiding-principles-stabilization-and-reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October 2013

65Stoll (n 32) 103

66Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) International Court of Justice 14 February 2002

67The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

68BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20 May 1999)

69Pedersen (n 44)

70Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

71Warren(n 49)

-MEMORANDUM for theRESPONDENT-

decisions of the Strasbourg courts tend not to tolerate high damages awards72 none of them

involved the scale of character assassination like in this case73Second spousal abuse74 is a

serious allegation aimed at scandalising Rhorsquos reputation for negative publicity75 purposes

and third such an allegation does not contribute to public debate where there are no facts

substantiating the allegation76

7 Furthermore such an allegation is solely speculative and was coldly calculated to

inflict maximum damage to Rhorsquos reputation77 Rhorsquos loss must be seen in the context of

his negative publicity78 and its impact on his pecuniary loss arising from the protest79 In

addition to that the grief over loss of reputation and honour which was clearly compounded

by the tasteless spousal abuse allegations80 Rho has absolute right to ask for damages since

his right to privacy is in issue and since ldquothe possibility of taking an action under civil law

should be guaranteed to enable a victim to claim possible damages for invasion of

privacyrdquo81 Furthermore the damages are reasonable and does not violate right to enjoyment

of property of the Applicant

72Jersild v Denmark App no 159808 (ECHR 23 September 1994)

73Clarification 10

74Domestic Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt accessed 6 October 2013

75 What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October 2013

76 Compromis para12

77 Compromis para13

78 Clarification 10

79 Compromis para9

80Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June 2007)

81 Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary Assembly of Council of Europe 26 July 1998 Article 14(i)

-MEMORANDUM for theRESPONDENT-

III In any event the requirement is permissible under Article 29(2) UDHR

a) The requirement is prescribed by law

8 Imposing damages on Sang for breach of the Wiretap Act82 is a justified interference

with his freedom of expression The interference in question is validly provided by law and

serves to protect an individualrsquos right to protection from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR

b) The requirement is in pursuance of legitimate aims

9 The ECtHR in Handyside v United Kingdom83 acknowledged that lsquostate authorities

are in principle in a better position than the international judge to give an opinion on the

exact content of these requirements as well as on the necessity of a restriction of a

penaltyrsquo84 Whether a restriction is necessary in the circumstances is therefore an inquiry

based on the facts and circumstances prevailing in the country concerned which the national

authorities are in a better position to undertake85 For the foregoing reasons the requirement

is in pursuance of legitimate aims

c) The restriction is necessary in a democratic society

10 The thrust of the Mhugan courtrsquos reasoning in imposing damages on Sang was

directed at his dissemination of lsquounlawfully obtained materialrsquo86 ie Rhorsquos recorded

82 Compromis para14

83 App no 549372( ECHR 7 December 1976)

84Handyside(n 28) at [48] The Sunday Times (n 8) Joint Dissenting Opinion of Judges Wiarda Cremona Thor Vilhjalmsson Ryssdal Ganshof van der Meersch Sir Gerald Fitzmaurice Bindschedler-Robert Liesh and Matscher

85Case of Klass and Others v Germany App no 502971(EHRR 6 September 1978)

86 Compromis para16

-MEMORANDUM for theRESPONDENT-

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 13: Oxford Respondent

X and Y v Netherlands App no 897880(ECHR 26 March 1985)

ETK v News Group Newspapers [2011] EWCA Civ 439

Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no

5422400

(ECtHR 12 December 2000)

Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902

(ECtHR

13 May 2003)

Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006)

Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR

28 March 1990)

HRH Princess of Wales v MGN Newspapers App no1306997 (ECtHR 11

December 2003)

Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July

2009)

-MEMORANDUM for theRESPONDENT-

Klass and Others v Germany (App no 502971)Application

No 502971(ECHR 6 September1978)

Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25

February 1992)

Plon(socieacuteteacute) v FranceApp no 5814800(ECHR 18 May 2004)

Worm v Austria (1997) 25 EHRR 454

X and Y v Netherlands App no897880(ECHR 26 March 1985)

Funke v France App no 1082884(ECHR 25 February 1993) Keegan v

Ireland (1994) 18 EHRR 342

Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

UNITED STATES

Referred to in

McIntyre v Ohio Elections Commission 514 US 334 (1995)

Buckley v Valeo424 US 1 (1976)

Branzburg v Hayes 408 US 665

-MEMORANDUM for theRESPONDENT-

OShea v Littleton 414 US 488 (1974)

Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

Laird v Tatum 408 US 1 (1972)

Meese v Keene 481 US 465 (1987)

Niemotko v Maryland 340 US 268 (1951)

Shuttleworth v Birmingham 394 US 147 (1969)

Frisby v Schultz 487 US 474 (1988)

Katz v United States 389 US 347 (1967)

Acrara v Cloud Books Inc478 US 697 (1986)

Alexander v US 509 US 544 (1993)

Gertz v Welch 418 US 323 (1974)

Time Inc v Firestone 424 US 448 (1976)

Bartnicki v Vopper532 US 514 (2001)

Hutchinson v Proxmire443 US 111 (1979)

Wolston v Readerrsquos Digest Association Inc443 US 157 (1979)

Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981)

-MEMORANDUM for theRESPONDENT-

Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987)

Cox v New Hampshire 312 US 569 (1941)

Freedman v Maryland 380 US 51 (1965)

Madsen v Womenrsquos Health CenterInc et al 512 US 753 (1994)

United States v OBrien 391 US 367 (1968)

Turner Broadcasting System Inc v FCC 512 US 622 (1994)

Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton

536 US 150 (2002)

Ward v Rock Against Racism 491 US 781 (1989)

Galella v Onassis 487 F 2d 986 (1973)

Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

Bartnicki v Vopper532 US 514 (2001)

R v Oakes [1986] 1 SCR 103

New York Times Co v United States 403 US 713

Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186

(1984)

-MEMORANDUM for theRESPONDENT-

HUMAN RIGHTS COMMITTEE

Referred to in

Aduayom Diasso and Dobou v Togo Communications Nos 4221990

4231990

and 4241990 UN Doc CCPRC51D4221990 4231990 and 4241990

(1996)

ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN

Doc CCPRC85D11802003 (2006) (UN Human Rights Committee)

ENGLISH CASES

Referred to

in

A v B and Anr[2002] EWCA Civ 337 (UK)

McKennitt v Ash [2007] 3 WLR 194

Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK)

D v L [2004] EMLR 1 (UK)

Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK)

Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK)

-MEMORANDUM for theRESPONDENT-

R v Broadcasting Standards Commission ex parte British Broadcasting

Corporation (Liberty intervening) [2000] 3 All ER 989 (UK)

R v Loveridge[2001] EWCA Crim 973 (UK)

INDIAN CASES

Referred to in

Zimbabwe

Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231

REGIONAL AND INTERNATIONAL INSTRUMENTS

African Charter on Human and Peoplesrsquo Rights (adopted 27 June

1981entered into force 21 October 1986) (1982) 21 ILM 58

American Convention on Human Rights (adopted 22 November

1969entered into force 18 July 1978)

European Convention on Human Rights (adopted 4 November 1950

entered into force 3 September 1953)

International Covenant on Civil and Political Rights (adopted 16

-MEMORANDUM for theRESPONDENT-

December 1966 entered into force 23 March 1976) 999 UNTS 171

Universal Declaration of Human Rights (adopted 10 December 1948

UNGA Res 217 A(III)

CONSTITUTION

The Constitution of United States of America 1788

The Constitution of Argentina 1853

The Constitution of Belgium 1831

The Constitution of Brazil 1988

The Constitution Act of Finland 2000

The Constitution of India 1950

STATUTES

MISCELLANEOUS

-MEMORANDUM for theRESPONDENT-

Resolution 1003 (1993) on the ethics of journalism adopted by the

Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

Case Concerning the Arrest Warrant of 11 April 2000 (Democratic

Republic of the Congo v Belgium) (Merits) International Court of Justice

14 February 2002

21

Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary

Assembly of Council of Europe 26 July 1998 Article 14(i)

25

STATEMENT OF RELEVANT FACTS

-MEMORANDUM for theRESPONDENT-

ECONOMIC SCENARIO IN MHUGAN

1 The respondent country Republic of Mhugan is a country which obtained

independence in 1959 and since then it has had a parliamentary form of government1 Its

economy has grown rapidly since the late twentieth century fueled by a combination of

information technology industries manufacturing and financial services2

SOCIAL STATUS OF RHO

2 BansitSangnont better known by his stage name Rho is a pop music singer-

songwriter in Mhugan3 Rho after his music video for his song ldquoPokeacutePokeacuterdquo in 2011 became

very successful and was known throughout the world In early 2013 rumors began to

surface that Rho has been physically andor emotionally abusive to his wife an allegation

that Rho has vehemently denied4

COMPANIES PROVIDING INFORMATION ON SEARCH QUERIES

3 Centiplex Corporation based in Mhugan is the leading Internet services company in

Mhugan5 It runs an Internet search engine More than 80 of all search queries in Mhugan

are conducted through Centiplex and the remaining being conducted through Google6

Dexian is a global information services company based in the United States7 Its core

business is collecting aggregating analyzing and disseminating information relating to

1 Compromis para 1

2 Ibid

3 Compromis para 2

4 Compromis para 3

5 Compromis para4

6 Ibid

7 Compromis para 5

-MEMORANDUM for theRESPONDENT-

individuals8 Dexian claims to have records for almost 500 million people although those

records vary widely in their scope completeness and correctness9 The particular methods

that Dexian uses to combine sources and build individual records are not publicly known

and Dexian claims such information to be a trade secret10

4 Centiplex is a Dexian client and both buys and sells data to Dexian11 Prior to the

2013 Search Privacy Act described below no law or regulation in Mhugan restricted a

search enginersquos ability to collect disclose or use information12

ALLEGATIONS IMPOSED ON THON SANG

5 Thon Sang maintains an active blog on the Centiplex platform in Mhugan13 The ad

revenue goes to the centiplex and is not shared with the bloggers themselves14Sang is

ldquocelebrity-obsessedrdquo and his news is dedicated to Mhuganian celebrities15Sang has blogged

about the rumors of Rho abusing his wife writing that ldquoif true people should boycott Rhorsquos

music in protestrdquo16 On May 1 2013 Sang posted a voicemail that Rho left for his friend

8 Ibid

9 Ibid

10 Ibid

11 Compromis para 6

12 Ibid

13 Compromis para 7

14 Ibid

15 Compromis para 8

16 Ibid

-MEMORANDUM for theRESPONDENT-

TaurAklamit17 In the voicemail someone identifying himself as ldquoBansitrdquo said that he was

ldquofurious with my wife for not being more obedientrdquo and that ldquoI need to give her a good

smacking to show her whorsquos in chargerdquo18 Sang wrote in his post that he got this recording

from someone who tried to get into Aklamitrsquos voicemail Sang also wrote ldquoso the rumors are

true Boycott Rho and donrsquot even think about dancing the PokeacutePokeacuterdquo 19

6 The next day Sang posted again to gain more popularity- ldquoMore evidence this time

from Rhorsquos web searches which include lsquohow to control your wifersquo and lsquowhipping

techniquesrsquordquo Sang was very anxious to acquire information regarding Rho and therefore he

purchased Rhorsquos profile from Dexian for 20000 MHD which is approximately 002 Euros

7 On May 4 Rho held a press conference with his wife at his side where he stated

that he left the recorded voicemail for his friend TaurAlkamit and he would never even

dream of striking his wife He called Sang and whoever had recorded the voicemail

ldquovicious unethical and unprofessional rumor mongersrdquo who were ldquocriminals who deserve

to be punishedrdquo while his wife was busy listening to him and did not utter a word at the

conference On May 5 Sang again posted a reply stating that he was disgruntled by Rhorsquos

explanations

8 Sang clarified that the source of the voicemail had explained to him how he or she

had come across the message20 The source had entered Aklamitrsquos number by mistake

Aklamit and the source apparently shared the same password because neither had ever 17 Compromis para 9

18 Ibid

19 Ibid

20 Compromis para13

-MEMORANDUM for theRESPONDENT-

changed it from the default password for the voicemail system ldquo123456rdquo Before the source

had realized the mistake heshe clicked on the first message and heard it21 Suspecting that

the ldquoBansitrdquo on the message was in fact Rho the source then realized that this mailbox was

not hishers The source downloaded the copy of the message and sent the copy to Sang but

asking him not to reveal hisher identity22

PROVISIONS OF WIRETAP ACT

9 Mhuganian law makes it illegal under the Wiretap Act to ldquointentionally intercept or

obtain unauthorized access to any telephone or electronic communications whether in

transit or in storage23rdquo The Wiretap Act further makes it illegal for ldquoany person to

disseminate the contents of a telephone or electronic communications that the person knows

to have been unlawfully intercepted or obtained under this Act24rdquo The Wiretap Act provides

for both civil and criminal penalties Among the civil penalties are statutory damages up to

1000000 MHD The portion of the Wiretap Act described here contains an exception for

anyone acting in an official government capacity25

The Wiretap Act defines ndash

a) ldquodirectly accessedrdquo to include both (1) a link that leads directly to the material and

(2) any link that from the surrounding context reasonably indicates that it will lead

21 Ibid

22 Ibid

23 Compromis para14

24 Ibid

25 Ibid

-MEMORANDUM for theRESPONDENT-

to the prohibited material and does in fact lead to such material regardless of how

many links it takes to reach the prohibited material26

b) A search engine can meet its obligations under such an order by de-indexing the

relevant web pages but such de-indexing is not required so long as the relevant web

pages do not appear on the first page of search results27

c) The order remains in force unless and until the court rules against the plaintiff on

the Wiretap Act claim (or an appellate court rules against the plaintiff on this claim)

or the case is otherwise dismissed If the plaintiff prevails on the claim and

continues to prevail through any appeals the order effectively becomes permanent28

d) The Act provides for both civil and criminal penalties for a violation of such a

search engine order with statutory damages of up to 10000 MHD per day of

violation for a negligent violation and up to 1000000 MHD per day for an

intentional violation Criminal penalties are only available for an intentional

violation29

10 On May 8 2013 Rho sued Sang under the Wiretap Act for knowingly disseminating

the contents of unlawfully obtained communications30 Rho immediately applied for a search

engine order under the Act against Centiplex which the court granted31 The court

26 Compromis para15

27 Ibid

28 Ibid

29 Ibid

30 Compromis para16

31 ibid

-MEMORANDUM for theRESPONDENT-

ultimately ruled that Sang had violated the Wiretap Act and awarded statutory damages to

Rho of 400000 MHD In so ruling the court found under Mhuganian law that while the

sourcersquos initial hearing of the voicemail message may have been accidental the subsequent

downloading of the message to hisher computer was intentional and unauthorized under the

Wiretap Act and that furthermore because Sang had recounted on his blog all of the

relevant facts about the circumstances under which the source had acquired the voicemail

message Sang had the knowledge required to be liable under the Act32

11 Centiplex was given the search engine order by the court for disseminating the

contents of the recorded voicemail under the wiretap act and centiplex immediately began to

comply with the order entered against it33 Centiplex made an appearance in Rhorsquos case

against Sang in order to challenge the validity of the search engine order but the court

upheld the order34

12 In the same lawsuit Rho also sued the unknown source of the recorded voicemail

message as a ldquoJohn Doe35rdquo Rho subpoenaed Sang for the identity of that person Sang filed

a motion with the court to quash the subpoena asserting a privilege to hide the identity of

his source36 The court denied the motion to quash as under Mhuganian law the court does

recognize a qualified privilege not to reveal sources but only to ldquoprofessional journalistsrdquo

32 ibid

33 Compromis para1617

34 Ibid

35 Compromis para18

36 Ibid

-MEMORANDUM for theRESPONDENT-

but Sang was not a professional journalist as he did not disseminate the information to the

public for the gain of livelihood as the revenue goes to the CentiplexHowever the court did

grant a stay of the subpoena

2013 SEARCH PRIVACY ACT

13 On May 15 2013 Mhugan enacted the Search Privacy Act which makes it unlawful

for a search engine to sell information about a personrsquos search queries without that personrsquos

consent37

a) For purposes of this Act a ldquosalerdquo is defined to be a ldquotransfer in exchange for

anything of valuerdquo

b) Information is considered to be information ldquoabout a personrsquos search queriesrdquo if

individual search queries are associated with ldquoany identifier including without

limitation a name address phone number email address government identification

number date of birth or IP addressrdquo

c) The Act does not apply to non-sale transfers of such information nor does it apply

to any subsequent transfers of the same information after an initial transfer by the

search engine whether or not those subsequent transfers are sales

d) The Act contains explicit exceptions for disclosures to law enforcement agencies

pursuant to a warrant subpoena or court order and disclosures incident to the

search enginersquos ordinary course of business

e) The Act provides for compensatory or statutory damages at the plaintiffrsquos election

as well as punitive damages for a ldquowillful violationrdquo

f) The Act is scheduled to become effective on May 1 201438

37 Compromis para19

38 ibid

-MEMORANDUM for theRESPONDENT-

14 On May 20 2013 Centiplex sued in Mhugan to have the Search Privacy Act

declared invalid under the laws and Constitution of Mhugan39 But the court held the search

privacy act to be valid40

15 All of the rulings described above were appealed to the Mhugan Supreme Court the

highest appellate court in Mhugan and the Mhugan Supreme Court dismissed all of the

appeals41

16 Sang and Centiplex have challenged all of the following in the Universal Court of

Human Rights42

a) the damages imposed on Sang for disseminating the recorded voicemail

b) the subpoena to Sang to disclose the source of the recorded voicemail

c) the order against Centiplex requiring that webpages that link to the recorded

voicemail including Sangrsquos blog posts never appear on the first page of search

results

d) the validity of the 2013 Search Privacy Act43

39 Compromis para 20

40 Ibid

41 Compromis para21

42 Compromis para 22

43 Ibid

-MEMORANDUM for theRESPONDENT-

17 No law domestic or international restricts either Sangrsquos or Centiplexrsquos standing to

bring these challenges44 Both Sangrsquos and Centiplexrsquos positions have been rejected on the

merits in the domestic courts of Mhugan and all appeals or other legal remedies within the

Mhuganian court system have been exhausted45

STATEMENT OF JURISDICTION

CASE CONCERNING RIGHTS AND OBLIGATIONS UNDER THE UDHR

SANG AND CENTIPLEX Applicants

v

44 Compromis para 23

45 Ibid

-MEMORANDUM for theRESPONDENT-

THE REPUBLIC OF MHUGAN Respondent

ldquoSang and Centiplex (the Applicants) and the Republic of Mhugan (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 Mhuganian means the

Universal Freedom of Expression Court has jurisdiction in this matterrdquo

IN THE UNIVERSAL FREEDOM OF EXPRESSION COURT

THE RESPONDENT MOST HUMBLY AND RESPECTFULLY SUBMITS TO THE

JURISDICTION OF THIS HONrsquoBLE COURT

QUESTIONSPRESENTED

THE FOLLOWING QUESTIONS HAVE BEEN PRESENTED BEFORE THE COURT

FOR ITS DETERMINATION

1 WHETHER THE DAMAGES IMPOSED ON THE APPLICANT ARE CONSISTENT

WITH THE PROVISIONS OF THE UDHR

-MEMORANDUM for theRESPONDENT-

2 WHETHER THE REQUIREMENT TO DISCLOSE THE SOURCE OF THE

RECORDED VOICEMAIL IS CONSISTENT WITH THE PROVISIONS OF THE

UDHR

3 WHETHER THE SECTION OF THE WIRETAP ACT THAT PROVIDES FOR A

SPECIAL PROVISIONAL REMEDY IS CONSISTENT WITH THE UDHR

4 WHETHER THE PROVISIONS OF THE 2013 SEARCH PRIVACY ACT ARE

CONSISTENT WITH THE UDHR

SUMMARYOF ARGUMENTS

A The courts finding imposed damages of 400000 MHD on the Applicant First the

requirement does not infringe the right to freedom of expression of the Applicant Herein

firstly Respondent submits that the impugned requirement does not restrict the right to

freedom of expression and secondly it does not cause a chilling effect Second property

rights under Article 17 are not infringed because the Applicant cannot enjoy his right by

violating ones right under Article 12 The allegation emphasised by the Applicant does not

contribute to public debate as there are no facts substantiating the allegation Third the

-MEMORANDUM for theRESPONDENT-

Respondent possess a reasonable expectation of privacy under Article 12 which has been

violated after the dissemination of the unauthorised information took place In any event the

restriction is permissible under Article 29(2) of the UDHR It is prescribedby law under the

Wiretap Act The situation in Mhugan shows that the Wiretap Act is clearly in pursuit of the

legitimate aims of serves to protect an individualrsquos right from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR The restriction is necessary in a

democratic society as it corresponds to a pressing social need and is proportionate to the

legitimate aims

B The requirement by the court has mandated the Applicant to disclose the identity of

the source of the voicemail and it does not contravene the rights to freedom of expression

enshrined in Article 19 of the UDHR Herein firstly Article 19 does not include the right to

anonymity secondly it does not cause a chilling effect and finally the requirement does

not constitute prior restraint

Further the requirement does notcontravene the right to privacy guaranteed under Article 12

of the UDHR because there is no actual subjective expectation of privacy which is

objectively reasonable Finally theright to remedy enshrined in Article 8 of the UDHR has

not been violated because the Respondent has a right to effective remedy which is possible

only when the Applicant will disclose the name of the source of the information that

infiltrated the voicemailIn any event these measures are valid limitations under Article

29(2) of the UDHR Theysatisfy the three-tiered test of legality legitimacy and necessity

C The requirement by the Court mandated Centiplex to remove the impugned

information from the first page of search result First it does not contravene the right to

expression enshrined in Article 19 of the UDHR Herein firstly the restriction doesnt

impose filtering or prior restraint secondly it does not create a Chilling effect Second the

-MEMORANDUM for theRESPONDENT-

right to privacy guaranteed under Article 12 is violated as it has a superseding effect on

Applicants right guaranteed under Article 19 In any event these measures are valid

limitations under Article 29(2) of the UDHR They satisfy the three-tier test of legality

legitimacy and necessity

D The requirement under the 2013 Search Privacy Act is consistent with the UDHR

First the requirement does not contravene right to privacy enshrined in Article 12 of the

UDHRItexemplifies how in certain circumstances the right to privacy outweighs the right

to freedom of expression Second it does not contravene Article 19 as it complies with the

three-tier test under Article 29(2) The restriction is prescribed by law as it is made under the

authority of the SPA It is pursuant to the legitimate aim of protection of rights of others as

the Respondent possesses a reasonable expectation of privacy Further the restriction is

necessary in ademocratic society as the dissemination does not warrant to a debate of

general interest

ARGUMENTS

A THE DAMAGES IMPOSED ON THE APPLICANT ARE JUST FAIR AND

CONSISTENT WITH THE PROVISIONS OF THE UDHR

1 The courts finding imposed damages of 400000 MHD46 on the Applicant

Respondent submits that this requirement is consistent with the right to freedom of speech

and expression under Article 19 [I] right to property under Article 17 [II] and valid under

46 Compromis para16

-MEMORANDUM for theRESPONDENT-

Article 29(2) [III] Moreover the dissemination was privacy intrusive under Article 12

UDHR [IV]

I The requirement is not a restriction on Article 19 UDHR

2 Article 19 guarantees ldquothe right to freedom of opinion and expression hellip without

interferencehellipthrough any mediardquo47 Respondent submits that the impugned requirement

does not restrict the right to freedom of expression [a] and does not cause a chilling effect

[b]

a) The requirement does not restrict the freedom of expression

3 Notwithstanding the pressrsquo vital ldquowatchdogrdquo role48 journalists cannot be released

from their duty to obey the ordinary law on the basis that Article 19 of the UDHR affords

them protection49 In Stoll v Switzerland the ECtHR held that there is no lsquowholly

unrestricted freedom of expression even with respect to press reporting of matters of serious

public concernrsquo50 The Respondent emphasises the Courtrsquos sentiment that journalistic

ethics51 play a considerably important role lsquogiven the influence wielded by the media in

contemporary societyrsquo52 It is no excuse to say that Sangrsquos duty as a journalist compelled

47 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19 See also International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

48 Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government Ethics(The ANNALS of the American Academy of Political and Social Science1995 )

49Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

50Stoll (n 49) BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR 20 May 1999) 65

51 Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5 October 2013

52Stoll (n 49) 104

-MEMORANDUM for theRESPONDENT-

him to commit an unlawful act53 when in fact this duty could have been discharged through

legal and ethical means54

4 Moreover it is established that ldquonews broadcasting should be based on truthfulness

ensured by the appropriate means of verification and proof and impartiality in

presentation description and narrationrdquo55 Sang clearly did not follow these standards56

Having in mind that ldquoduties and responsibilities which accompany the exercise of the right

tofreedom of expression by media professionals assume special significance in situations

ofconflict and tensionrdquo57 it can be manifestly perceived that Rho had sent the voicemailonly

to let off some steam to his good friend Taur58 which proves prima faciethere was no such

situation prevailing and dissemination does not meet these standards

b) The impugned requirement does not cause a lsquoChilling effectrsquo

5 Ultimately the Respondent reiterates that there is no interference with the freedom

of the press59 Further the damages60 imposed upon Sang do not amount to a form of

censorship61 intended to discourage the press from expressing criticism62 Requirement to

53 Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt accessed 5 October 2013

54 Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013

55 Resolution 1003 (1993) on the ethics of journalism adopted by the Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

56 Compromis para13

57Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

58 Compromis para11

59Freedom of the Press lthttpwwwpuclorgfrom-archivesMediafreedom-presshtmgt accessed 9 October 210360 Compromis para 16

61 Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October 2013

62Stoll (n 49) 154

-MEMORANDUM for theRESPONDENT-

pay damages was merely to discourage journalist for adopting unlawful methods for

obtaining information63 protect right to privacy enshrined under Article 12 UDHR and

public order64 and is wholly proportionate in this instance The safeguard afforded by

freedom of speech in relation to journalistic reporting on issues of general interest is subject

to the journalistacting in good faith and in accordance with the ethics of journalism65

Regardless of the Applicantrsquos misguided beliefs and best intentions his profession is no

source of immunity or impunity66 the road to perdition is paved with bona-fide intentions

II The requirement does not restrict Article 17 UDHR

6 Sang had doubtlessly breached his lsquoduties and responsibilitiesrsquo67 the ethics of

journalism68 and did not act lsquoin good faithrsquo69Besides the information lsquodoes not bear on

matters of general importancersquo70 and its dissemination is an abuse of the pressrsquos ldquowatchdogrdquo

role71To enhance this contention reliance is placed upon three groundsFirst while earlier

63 Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-

codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

64 Public Order lthttpwwwusiporgguiding-principles-stabilization-and-reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October 2013

65Stoll (n 32) 103

66Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) International Court of Justice 14 February 2002

67The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

68BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20 May 1999)

69Pedersen (n 44)

70Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

71Warren(n 49)

-MEMORANDUM for theRESPONDENT-

decisions of the Strasbourg courts tend not to tolerate high damages awards72 none of them

involved the scale of character assassination like in this case73Second spousal abuse74 is a

serious allegation aimed at scandalising Rhorsquos reputation for negative publicity75 purposes

and third such an allegation does not contribute to public debate where there are no facts

substantiating the allegation76

7 Furthermore such an allegation is solely speculative and was coldly calculated to

inflict maximum damage to Rhorsquos reputation77 Rhorsquos loss must be seen in the context of

his negative publicity78 and its impact on his pecuniary loss arising from the protest79 In

addition to that the grief over loss of reputation and honour which was clearly compounded

by the tasteless spousal abuse allegations80 Rho has absolute right to ask for damages since

his right to privacy is in issue and since ldquothe possibility of taking an action under civil law

should be guaranteed to enable a victim to claim possible damages for invasion of

privacyrdquo81 Furthermore the damages are reasonable and does not violate right to enjoyment

of property of the Applicant

72Jersild v Denmark App no 159808 (ECHR 23 September 1994)

73Clarification 10

74Domestic Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt accessed 6 October 2013

75 What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October 2013

76 Compromis para12

77 Compromis para13

78 Clarification 10

79 Compromis para9

80Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June 2007)

81 Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary Assembly of Council of Europe 26 July 1998 Article 14(i)

-MEMORANDUM for theRESPONDENT-

III In any event the requirement is permissible under Article 29(2) UDHR

a) The requirement is prescribed by law

8 Imposing damages on Sang for breach of the Wiretap Act82 is a justified interference

with his freedom of expression The interference in question is validly provided by law and

serves to protect an individualrsquos right to protection from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR

b) The requirement is in pursuance of legitimate aims

9 The ECtHR in Handyside v United Kingdom83 acknowledged that lsquostate authorities

are in principle in a better position than the international judge to give an opinion on the

exact content of these requirements as well as on the necessity of a restriction of a

penaltyrsquo84 Whether a restriction is necessary in the circumstances is therefore an inquiry

based on the facts and circumstances prevailing in the country concerned which the national

authorities are in a better position to undertake85 For the foregoing reasons the requirement

is in pursuance of legitimate aims

c) The restriction is necessary in a democratic society

10 The thrust of the Mhugan courtrsquos reasoning in imposing damages on Sang was

directed at his dissemination of lsquounlawfully obtained materialrsquo86 ie Rhorsquos recorded

82 Compromis para14

83 App no 549372( ECHR 7 December 1976)

84Handyside(n 28) at [48] The Sunday Times (n 8) Joint Dissenting Opinion of Judges Wiarda Cremona Thor Vilhjalmsson Ryssdal Ganshof van der Meersch Sir Gerald Fitzmaurice Bindschedler-Robert Liesh and Matscher

85Case of Klass and Others v Germany App no 502971(EHRR 6 September 1978)

86 Compromis para16

-MEMORANDUM for theRESPONDENT-

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 14: Oxford Respondent

Klass and Others v Germany (App no 502971)Application

No 502971(ECHR 6 September1978)

Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25

February 1992)

Plon(socieacuteteacute) v FranceApp no 5814800(ECHR 18 May 2004)

Worm v Austria (1997) 25 EHRR 454

X and Y v Netherlands App no897880(ECHR 26 March 1985)

Funke v France App no 1082884(ECHR 25 February 1993) Keegan v

Ireland (1994) 18 EHRR 342

Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

UNITED STATES

Referred to in

McIntyre v Ohio Elections Commission 514 US 334 (1995)

Buckley v Valeo424 US 1 (1976)

Branzburg v Hayes 408 US 665

-MEMORANDUM for theRESPONDENT-

OShea v Littleton 414 US 488 (1974)

Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

Laird v Tatum 408 US 1 (1972)

Meese v Keene 481 US 465 (1987)

Niemotko v Maryland 340 US 268 (1951)

Shuttleworth v Birmingham 394 US 147 (1969)

Frisby v Schultz 487 US 474 (1988)

Katz v United States 389 US 347 (1967)

Acrara v Cloud Books Inc478 US 697 (1986)

Alexander v US 509 US 544 (1993)

Gertz v Welch 418 US 323 (1974)

Time Inc v Firestone 424 US 448 (1976)

Bartnicki v Vopper532 US 514 (2001)

Hutchinson v Proxmire443 US 111 (1979)

Wolston v Readerrsquos Digest Association Inc443 US 157 (1979)

Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981)

-MEMORANDUM for theRESPONDENT-

Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987)

Cox v New Hampshire 312 US 569 (1941)

Freedman v Maryland 380 US 51 (1965)

Madsen v Womenrsquos Health CenterInc et al 512 US 753 (1994)

United States v OBrien 391 US 367 (1968)

Turner Broadcasting System Inc v FCC 512 US 622 (1994)

Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton

536 US 150 (2002)

Ward v Rock Against Racism 491 US 781 (1989)

Galella v Onassis 487 F 2d 986 (1973)

Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

Bartnicki v Vopper532 US 514 (2001)

R v Oakes [1986] 1 SCR 103

New York Times Co v United States 403 US 713

Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186

(1984)

-MEMORANDUM for theRESPONDENT-

HUMAN RIGHTS COMMITTEE

Referred to in

Aduayom Diasso and Dobou v Togo Communications Nos 4221990

4231990

and 4241990 UN Doc CCPRC51D4221990 4231990 and 4241990

(1996)

ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN

Doc CCPRC85D11802003 (2006) (UN Human Rights Committee)

ENGLISH CASES

Referred to

in

A v B and Anr[2002] EWCA Civ 337 (UK)

McKennitt v Ash [2007] 3 WLR 194

Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK)

D v L [2004] EMLR 1 (UK)

Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK)

Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK)

-MEMORANDUM for theRESPONDENT-

R v Broadcasting Standards Commission ex parte British Broadcasting

Corporation (Liberty intervening) [2000] 3 All ER 989 (UK)

R v Loveridge[2001] EWCA Crim 973 (UK)

INDIAN CASES

Referred to in

Zimbabwe

Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231

REGIONAL AND INTERNATIONAL INSTRUMENTS

African Charter on Human and Peoplesrsquo Rights (adopted 27 June

1981entered into force 21 October 1986) (1982) 21 ILM 58

American Convention on Human Rights (adopted 22 November

1969entered into force 18 July 1978)

European Convention on Human Rights (adopted 4 November 1950

entered into force 3 September 1953)

International Covenant on Civil and Political Rights (adopted 16

-MEMORANDUM for theRESPONDENT-

December 1966 entered into force 23 March 1976) 999 UNTS 171

Universal Declaration of Human Rights (adopted 10 December 1948

UNGA Res 217 A(III)

CONSTITUTION

The Constitution of United States of America 1788

The Constitution of Argentina 1853

The Constitution of Belgium 1831

The Constitution of Brazil 1988

The Constitution Act of Finland 2000

The Constitution of India 1950

STATUTES

MISCELLANEOUS

-MEMORANDUM for theRESPONDENT-

Resolution 1003 (1993) on the ethics of journalism adopted by the

Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

Case Concerning the Arrest Warrant of 11 April 2000 (Democratic

Republic of the Congo v Belgium) (Merits) International Court of Justice

14 February 2002

21

Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary

Assembly of Council of Europe 26 July 1998 Article 14(i)

25

STATEMENT OF RELEVANT FACTS

-MEMORANDUM for theRESPONDENT-

ECONOMIC SCENARIO IN MHUGAN

1 The respondent country Republic of Mhugan is a country which obtained

independence in 1959 and since then it has had a parliamentary form of government1 Its

economy has grown rapidly since the late twentieth century fueled by a combination of

information technology industries manufacturing and financial services2

SOCIAL STATUS OF RHO

2 BansitSangnont better known by his stage name Rho is a pop music singer-

songwriter in Mhugan3 Rho after his music video for his song ldquoPokeacutePokeacuterdquo in 2011 became

very successful and was known throughout the world In early 2013 rumors began to

surface that Rho has been physically andor emotionally abusive to his wife an allegation

that Rho has vehemently denied4

COMPANIES PROVIDING INFORMATION ON SEARCH QUERIES

3 Centiplex Corporation based in Mhugan is the leading Internet services company in

Mhugan5 It runs an Internet search engine More than 80 of all search queries in Mhugan

are conducted through Centiplex and the remaining being conducted through Google6

Dexian is a global information services company based in the United States7 Its core

business is collecting aggregating analyzing and disseminating information relating to

1 Compromis para 1

2 Ibid

3 Compromis para 2

4 Compromis para 3

5 Compromis para4

6 Ibid

7 Compromis para 5

-MEMORANDUM for theRESPONDENT-

individuals8 Dexian claims to have records for almost 500 million people although those

records vary widely in their scope completeness and correctness9 The particular methods

that Dexian uses to combine sources and build individual records are not publicly known

and Dexian claims such information to be a trade secret10

4 Centiplex is a Dexian client and both buys and sells data to Dexian11 Prior to the

2013 Search Privacy Act described below no law or regulation in Mhugan restricted a

search enginersquos ability to collect disclose or use information12

ALLEGATIONS IMPOSED ON THON SANG

5 Thon Sang maintains an active blog on the Centiplex platform in Mhugan13 The ad

revenue goes to the centiplex and is not shared with the bloggers themselves14Sang is

ldquocelebrity-obsessedrdquo and his news is dedicated to Mhuganian celebrities15Sang has blogged

about the rumors of Rho abusing his wife writing that ldquoif true people should boycott Rhorsquos

music in protestrdquo16 On May 1 2013 Sang posted a voicemail that Rho left for his friend

8 Ibid

9 Ibid

10 Ibid

11 Compromis para 6

12 Ibid

13 Compromis para 7

14 Ibid

15 Compromis para 8

16 Ibid

-MEMORANDUM for theRESPONDENT-

TaurAklamit17 In the voicemail someone identifying himself as ldquoBansitrdquo said that he was

ldquofurious with my wife for not being more obedientrdquo and that ldquoI need to give her a good

smacking to show her whorsquos in chargerdquo18 Sang wrote in his post that he got this recording

from someone who tried to get into Aklamitrsquos voicemail Sang also wrote ldquoso the rumors are

true Boycott Rho and donrsquot even think about dancing the PokeacutePokeacuterdquo 19

6 The next day Sang posted again to gain more popularity- ldquoMore evidence this time

from Rhorsquos web searches which include lsquohow to control your wifersquo and lsquowhipping

techniquesrsquordquo Sang was very anxious to acquire information regarding Rho and therefore he

purchased Rhorsquos profile from Dexian for 20000 MHD which is approximately 002 Euros

7 On May 4 Rho held a press conference with his wife at his side where he stated

that he left the recorded voicemail for his friend TaurAlkamit and he would never even

dream of striking his wife He called Sang and whoever had recorded the voicemail

ldquovicious unethical and unprofessional rumor mongersrdquo who were ldquocriminals who deserve

to be punishedrdquo while his wife was busy listening to him and did not utter a word at the

conference On May 5 Sang again posted a reply stating that he was disgruntled by Rhorsquos

explanations

8 Sang clarified that the source of the voicemail had explained to him how he or she

had come across the message20 The source had entered Aklamitrsquos number by mistake

Aklamit and the source apparently shared the same password because neither had ever 17 Compromis para 9

18 Ibid

19 Ibid

20 Compromis para13

-MEMORANDUM for theRESPONDENT-

changed it from the default password for the voicemail system ldquo123456rdquo Before the source

had realized the mistake heshe clicked on the first message and heard it21 Suspecting that

the ldquoBansitrdquo on the message was in fact Rho the source then realized that this mailbox was

not hishers The source downloaded the copy of the message and sent the copy to Sang but

asking him not to reveal hisher identity22

PROVISIONS OF WIRETAP ACT

9 Mhuganian law makes it illegal under the Wiretap Act to ldquointentionally intercept or

obtain unauthorized access to any telephone or electronic communications whether in

transit or in storage23rdquo The Wiretap Act further makes it illegal for ldquoany person to

disseminate the contents of a telephone or electronic communications that the person knows

to have been unlawfully intercepted or obtained under this Act24rdquo The Wiretap Act provides

for both civil and criminal penalties Among the civil penalties are statutory damages up to

1000000 MHD The portion of the Wiretap Act described here contains an exception for

anyone acting in an official government capacity25

The Wiretap Act defines ndash

a) ldquodirectly accessedrdquo to include both (1) a link that leads directly to the material and

(2) any link that from the surrounding context reasonably indicates that it will lead

21 Ibid

22 Ibid

23 Compromis para14

24 Ibid

25 Ibid

-MEMORANDUM for theRESPONDENT-

to the prohibited material and does in fact lead to such material regardless of how

many links it takes to reach the prohibited material26

b) A search engine can meet its obligations under such an order by de-indexing the

relevant web pages but such de-indexing is not required so long as the relevant web

pages do not appear on the first page of search results27

c) The order remains in force unless and until the court rules against the plaintiff on

the Wiretap Act claim (or an appellate court rules against the plaintiff on this claim)

or the case is otherwise dismissed If the plaintiff prevails on the claim and

continues to prevail through any appeals the order effectively becomes permanent28

d) The Act provides for both civil and criminal penalties for a violation of such a

search engine order with statutory damages of up to 10000 MHD per day of

violation for a negligent violation and up to 1000000 MHD per day for an

intentional violation Criminal penalties are only available for an intentional

violation29

10 On May 8 2013 Rho sued Sang under the Wiretap Act for knowingly disseminating

the contents of unlawfully obtained communications30 Rho immediately applied for a search

engine order under the Act against Centiplex which the court granted31 The court

26 Compromis para15

27 Ibid

28 Ibid

29 Ibid

30 Compromis para16

31 ibid

-MEMORANDUM for theRESPONDENT-

ultimately ruled that Sang had violated the Wiretap Act and awarded statutory damages to

Rho of 400000 MHD In so ruling the court found under Mhuganian law that while the

sourcersquos initial hearing of the voicemail message may have been accidental the subsequent

downloading of the message to hisher computer was intentional and unauthorized under the

Wiretap Act and that furthermore because Sang had recounted on his blog all of the

relevant facts about the circumstances under which the source had acquired the voicemail

message Sang had the knowledge required to be liable under the Act32

11 Centiplex was given the search engine order by the court for disseminating the

contents of the recorded voicemail under the wiretap act and centiplex immediately began to

comply with the order entered against it33 Centiplex made an appearance in Rhorsquos case

against Sang in order to challenge the validity of the search engine order but the court

upheld the order34

12 In the same lawsuit Rho also sued the unknown source of the recorded voicemail

message as a ldquoJohn Doe35rdquo Rho subpoenaed Sang for the identity of that person Sang filed

a motion with the court to quash the subpoena asserting a privilege to hide the identity of

his source36 The court denied the motion to quash as under Mhuganian law the court does

recognize a qualified privilege not to reveal sources but only to ldquoprofessional journalistsrdquo

32 ibid

33 Compromis para1617

34 Ibid

35 Compromis para18

36 Ibid

-MEMORANDUM for theRESPONDENT-

but Sang was not a professional journalist as he did not disseminate the information to the

public for the gain of livelihood as the revenue goes to the CentiplexHowever the court did

grant a stay of the subpoena

2013 SEARCH PRIVACY ACT

13 On May 15 2013 Mhugan enacted the Search Privacy Act which makes it unlawful

for a search engine to sell information about a personrsquos search queries without that personrsquos

consent37

a) For purposes of this Act a ldquosalerdquo is defined to be a ldquotransfer in exchange for

anything of valuerdquo

b) Information is considered to be information ldquoabout a personrsquos search queriesrdquo if

individual search queries are associated with ldquoany identifier including without

limitation a name address phone number email address government identification

number date of birth or IP addressrdquo

c) The Act does not apply to non-sale transfers of such information nor does it apply

to any subsequent transfers of the same information after an initial transfer by the

search engine whether or not those subsequent transfers are sales

d) The Act contains explicit exceptions for disclosures to law enforcement agencies

pursuant to a warrant subpoena or court order and disclosures incident to the

search enginersquos ordinary course of business

e) The Act provides for compensatory or statutory damages at the plaintiffrsquos election

as well as punitive damages for a ldquowillful violationrdquo

f) The Act is scheduled to become effective on May 1 201438

37 Compromis para19

38 ibid

-MEMORANDUM for theRESPONDENT-

14 On May 20 2013 Centiplex sued in Mhugan to have the Search Privacy Act

declared invalid under the laws and Constitution of Mhugan39 But the court held the search

privacy act to be valid40

15 All of the rulings described above were appealed to the Mhugan Supreme Court the

highest appellate court in Mhugan and the Mhugan Supreme Court dismissed all of the

appeals41

16 Sang and Centiplex have challenged all of the following in the Universal Court of

Human Rights42

a) the damages imposed on Sang for disseminating the recorded voicemail

b) the subpoena to Sang to disclose the source of the recorded voicemail

c) the order against Centiplex requiring that webpages that link to the recorded

voicemail including Sangrsquos blog posts never appear on the first page of search

results

d) the validity of the 2013 Search Privacy Act43

39 Compromis para 20

40 Ibid

41 Compromis para21

42 Compromis para 22

43 Ibid

-MEMORANDUM for theRESPONDENT-

17 No law domestic or international restricts either Sangrsquos or Centiplexrsquos standing to

bring these challenges44 Both Sangrsquos and Centiplexrsquos positions have been rejected on the

merits in the domestic courts of Mhugan and all appeals or other legal remedies within the

Mhuganian court system have been exhausted45

STATEMENT OF JURISDICTION

CASE CONCERNING RIGHTS AND OBLIGATIONS UNDER THE UDHR

SANG AND CENTIPLEX Applicants

v

44 Compromis para 23

45 Ibid

-MEMORANDUM for theRESPONDENT-

THE REPUBLIC OF MHUGAN Respondent

ldquoSang and Centiplex (the Applicants) and the Republic of Mhugan (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 Mhuganian means the

Universal Freedom of Expression Court has jurisdiction in this matterrdquo

IN THE UNIVERSAL FREEDOM OF EXPRESSION COURT

THE RESPONDENT MOST HUMBLY AND RESPECTFULLY SUBMITS TO THE

JURISDICTION OF THIS HONrsquoBLE COURT

QUESTIONSPRESENTED

THE FOLLOWING QUESTIONS HAVE BEEN PRESENTED BEFORE THE COURT

FOR ITS DETERMINATION

1 WHETHER THE DAMAGES IMPOSED ON THE APPLICANT ARE CONSISTENT

WITH THE PROVISIONS OF THE UDHR

-MEMORANDUM for theRESPONDENT-

2 WHETHER THE REQUIREMENT TO DISCLOSE THE SOURCE OF THE

RECORDED VOICEMAIL IS CONSISTENT WITH THE PROVISIONS OF THE

UDHR

3 WHETHER THE SECTION OF THE WIRETAP ACT THAT PROVIDES FOR A

SPECIAL PROVISIONAL REMEDY IS CONSISTENT WITH THE UDHR

4 WHETHER THE PROVISIONS OF THE 2013 SEARCH PRIVACY ACT ARE

CONSISTENT WITH THE UDHR

SUMMARYOF ARGUMENTS

A The courts finding imposed damages of 400000 MHD on the Applicant First the

requirement does not infringe the right to freedom of expression of the Applicant Herein

firstly Respondent submits that the impugned requirement does not restrict the right to

freedom of expression and secondly it does not cause a chilling effect Second property

rights under Article 17 are not infringed because the Applicant cannot enjoy his right by

violating ones right under Article 12 The allegation emphasised by the Applicant does not

contribute to public debate as there are no facts substantiating the allegation Third the

-MEMORANDUM for theRESPONDENT-

Respondent possess a reasonable expectation of privacy under Article 12 which has been

violated after the dissemination of the unauthorised information took place In any event the

restriction is permissible under Article 29(2) of the UDHR It is prescribedby law under the

Wiretap Act The situation in Mhugan shows that the Wiretap Act is clearly in pursuit of the

legitimate aims of serves to protect an individualrsquos right from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR The restriction is necessary in a

democratic society as it corresponds to a pressing social need and is proportionate to the

legitimate aims

B The requirement by the court has mandated the Applicant to disclose the identity of

the source of the voicemail and it does not contravene the rights to freedom of expression

enshrined in Article 19 of the UDHR Herein firstly Article 19 does not include the right to

anonymity secondly it does not cause a chilling effect and finally the requirement does

not constitute prior restraint

Further the requirement does notcontravene the right to privacy guaranteed under Article 12

of the UDHR because there is no actual subjective expectation of privacy which is

objectively reasonable Finally theright to remedy enshrined in Article 8 of the UDHR has

not been violated because the Respondent has a right to effective remedy which is possible

only when the Applicant will disclose the name of the source of the information that

infiltrated the voicemailIn any event these measures are valid limitations under Article

29(2) of the UDHR Theysatisfy the three-tiered test of legality legitimacy and necessity

C The requirement by the Court mandated Centiplex to remove the impugned

information from the first page of search result First it does not contravene the right to

expression enshrined in Article 19 of the UDHR Herein firstly the restriction doesnt

impose filtering or prior restraint secondly it does not create a Chilling effect Second the

-MEMORANDUM for theRESPONDENT-

right to privacy guaranteed under Article 12 is violated as it has a superseding effect on

Applicants right guaranteed under Article 19 In any event these measures are valid

limitations under Article 29(2) of the UDHR They satisfy the three-tier test of legality

legitimacy and necessity

D The requirement under the 2013 Search Privacy Act is consistent with the UDHR

First the requirement does not contravene right to privacy enshrined in Article 12 of the

UDHRItexemplifies how in certain circumstances the right to privacy outweighs the right

to freedom of expression Second it does not contravene Article 19 as it complies with the

three-tier test under Article 29(2) The restriction is prescribed by law as it is made under the

authority of the SPA It is pursuant to the legitimate aim of protection of rights of others as

the Respondent possesses a reasonable expectation of privacy Further the restriction is

necessary in ademocratic society as the dissemination does not warrant to a debate of

general interest

ARGUMENTS

A THE DAMAGES IMPOSED ON THE APPLICANT ARE JUST FAIR AND

CONSISTENT WITH THE PROVISIONS OF THE UDHR

1 The courts finding imposed damages of 400000 MHD46 on the Applicant

Respondent submits that this requirement is consistent with the right to freedom of speech

and expression under Article 19 [I] right to property under Article 17 [II] and valid under

46 Compromis para16

-MEMORANDUM for theRESPONDENT-

Article 29(2) [III] Moreover the dissemination was privacy intrusive under Article 12

UDHR [IV]

I The requirement is not a restriction on Article 19 UDHR

2 Article 19 guarantees ldquothe right to freedom of opinion and expression hellip without

interferencehellipthrough any mediardquo47 Respondent submits that the impugned requirement

does not restrict the right to freedom of expression [a] and does not cause a chilling effect

[b]

a) The requirement does not restrict the freedom of expression

3 Notwithstanding the pressrsquo vital ldquowatchdogrdquo role48 journalists cannot be released

from their duty to obey the ordinary law on the basis that Article 19 of the UDHR affords

them protection49 In Stoll v Switzerland the ECtHR held that there is no lsquowholly

unrestricted freedom of expression even with respect to press reporting of matters of serious

public concernrsquo50 The Respondent emphasises the Courtrsquos sentiment that journalistic

ethics51 play a considerably important role lsquogiven the influence wielded by the media in

contemporary societyrsquo52 It is no excuse to say that Sangrsquos duty as a journalist compelled

47 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19 See also International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

48 Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government Ethics(The ANNALS of the American Academy of Political and Social Science1995 )

49Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

50Stoll (n 49) BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR 20 May 1999) 65

51 Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5 October 2013

52Stoll (n 49) 104

-MEMORANDUM for theRESPONDENT-

him to commit an unlawful act53 when in fact this duty could have been discharged through

legal and ethical means54

4 Moreover it is established that ldquonews broadcasting should be based on truthfulness

ensured by the appropriate means of verification and proof and impartiality in

presentation description and narrationrdquo55 Sang clearly did not follow these standards56

Having in mind that ldquoduties and responsibilities which accompany the exercise of the right

tofreedom of expression by media professionals assume special significance in situations

ofconflict and tensionrdquo57 it can be manifestly perceived that Rho had sent the voicemailonly

to let off some steam to his good friend Taur58 which proves prima faciethere was no such

situation prevailing and dissemination does not meet these standards

b) The impugned requirement does not cause a lsquoChilling effectrsquo

5 Ultimately the Respondent reiterates that there is no interference with the freedom

of the press59 Further the damages60 imposed upon Sang do not amount to a form of

censorship61 intended to discourage the press from expressing criticism62 Requirement to

53 Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt accessed 5 October 2013

54 Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013

55 Resolution 1003 (1993) on the ethics of journalism adopted by the Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

56 Compromis para13

57Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

58 Compromis para11

59Freedom of the Press lthttpwwwpuclorgfrom-archivesMediafreedom-presshtmgt accessed 9 October 210360 Compromis para 16

61 Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October 2013

62Stoll (n 49) 154

-MEMORANDUM for theRESPONDENT-

pay damages was merely to discourage journalist for adopting unlawful methods for

obtaining information63 protect right to privacy enshrined under Article 12 UDHR and

public order64 and is wholly proportionate in this instance The safeguard afforded by

freedom of speech in relation to journalistic reporting on issues of general interest is subject

to the journalistacting in good faith and in accordance with the ethics of journalism65

Regardless of the Applicantrsquos misguided beliefs and best intentions his profession is no

source of immunity or impunity66 the road to perdition is paved with bona-fide intentions

II The requirement does not restrict Article 17 UDHR

6 Sang had doubtlessly breached his lsquoduties and responsibilitiesrsquo67 the ethics of

journalism68 and did not act lsquoin good faithrsquo69Besides the information lsquodoes not bear on

matters of general importancersquo70 and its dissemination is an abuse of the pressrsquos ldquowatchdogrdquo

role71To enhance this contention reliance is placed upon three groundsFirst while earlier

63 Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-

codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

64 Public Order lthttpwwwusiporgguiding-principles-stabilization-and-reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October 2013

65Stoll (n 32) 103

66Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) International Court of Justice 14 February 2002

67The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

68BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20 May 1999)

69Pedersen (n 44)

70Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

71Warren(n 49)

-MEMORANDUM for theRESPONDENT-

decisions of the Strasbourg courts tend not to tolerate high damages awards72 none of them

involved the scale of character assassination like in this case73Second spousal abuse74 is a

serious allegation aimed at scandalising Rhorsquos reputation for negative publicity75 purposes

and third such an allegation does not contribute to public debate where there are no facts

substantiating the allegation76

7 Furthermore such an allegation is solely speculative and was coldly calculated to

inflict maximum damage to Rhorsquos reputation77 Rhorsquos loss must be seen in the context of

his negative publicity78 and its impact on his pecuniary loss arising from the protest79 In

addition to that the grief over loss of reputation and honour which was clearly compounded

by the tasteless spousal abuse allegations80 Rho has absolute right to ask for damages since

his right to privacy is in issue and since ldquothe possibility of taking an action under civil law

should be guaranteed to enable a victim to claim possible damages for invasion of

privacyrdquo81 Furthermore the damages are reasonable and does not violate right to enjoyment

of property of the Applicant

72Jersild v Denmark App no 159808 (ECHR 23 September 1994)

73Clarification 10

74Domestic Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt accessed 6 October 2013

75 What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October 2013

76 Compromis para12

77 Compromis para13

78 Clarification 10

79 Compromis para9

80Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June 2007)

81 Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary Assembly of Council of Europe 26 July 1998 Article 14(i)

-MEMORANDUM for theRESPONDENT-

III In any event the requirement is permissible under Article 29(2) UDHR

a) The requirement is prescribed by law

8 Imposing damages on Sang for breach of the Wiretap Act82 is a justified interference

with his freedom of expression The interference in question is validly provided by law and

serves to protect an individualrsquos right to protection from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR

b) The requirement is in pursuance of legitimate aims

9 The ECtHR in Handyside v United Kingdom83 acknowledged that lsquostate authorities

are in principle in a better position than the international judge to give an opinion on the

exact content of these requirements as well as on the necessity of a restriction of a

penaltyrsquo84 Whether a restriction is necessary in the circumstances is therefore an inquiry

based on the facts and circumstances prevailing in the country concerned which the national

authorities are in a better position to undertake85 For the foregoing reasons the requirement

is in pursuance of legitimate aims

c) The restriction is necessary in a democratic society

10 The thrust of the Mhugan courtrsquos reasoning in imposing damages on Sang was

directed at his dissemination of lsquounlawfully obtained materialrsquo86 ie Rhorsquos recorded

82 Compromis para14

83 App no 549372( ECHR 7 December 1976)

84Handyside(n 28) at [48] The Sunday Times (n 8) Joint Dissenting Opinion of Judges Wiarda Cremona Thor Vilhjalmsson Ryssdal Ganshof van der Meersch Sir Gerald Fitzmaurice Bindschedler-Robert Liesh and Matscher

85Case of Klass and Others v Germany App no 502971(EHRR 6 September 1978)

86 Compromis para16

-MEMORANDUM for theRESPONDENT-

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 15: Oxford Respondent

OShea v Littleton 414 US 488 (1974)

Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

Laird v Tatum 408 US 1 (1972)

Meese v Keene 481 US 465 (1987)

Niemotko v Maryland 340 US 268 (1951)

Shuttleworth v Birmingham 394 US 147 (1969)

Frisby v Schultz 487 US 474 (1988)

Katz v United States 389 US 347 (1967)

Acrara v Cloud Books Inc478 US 697 (1986)

Alexander v US 509 US 544 (1993)

Gertz v Welch 418 US 323 (1974)

Time Inc v Firestone 424 US 448 (1976)

Bartnicki v Vopper532 US 514 (2001)

Hutchinson v Proxmire443 US 111 (1979)

Wolston v Readerrsquos Digest Association Inc443 US 157 (1979)

Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981)

-MEMORANDUM for theRESPONDENT-

Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987)

Cox v New Hampshire 312 US 569 (1941)

Freedman v Maryland 380 US 51 (1965)

Madsen v Womenrsquos Health CenterInc et al 512 US 753 (1994)

United States v OBrien 391 US 367 (1968)

Turner Broadcasting System Inc v FCC 512 US 622 (1994)

Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton

536 US 150 (2002)

Ward v Rock Against Racism 491 US 781 (1989)

Galella v Onassis 487 F 2d 986 (1973)

Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

Bartnicki v Vopper532 US 514 (2001)

R v Oakes [1986] 1 SCR 103

New York Times Co v United States 403 US 713

Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186

(1984)

-MEMORANDUM for theRESPONDENT-

HUMAN RIGHTS COMMITTEE

Referred to in

Aduayom Diasso and Dobou v Togo Communications Nos 4221990

4231990

and 4241990 UN Doc CCPRC51D4221990 4231990 and 4241990

(1996)

ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN

Doc CCPRC85D11802003 (2006) (UN Human Rights Committee)

ENGLISH CASES

Referred to

in

A v B and Anr[2002] EWCA Civ 337 (UK)

McKennitt v Ash [2007] 3 WLR 194

Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK)

D v L [2004] EMLR 1 (UK)

Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK)

Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK)

-MEMORANDUM for theRESPONDENT-

R v Broadcasting Standards Commission ex parte British Broadcasting

Corporation (Liberty intervening) [2000] 3 All ER 989 (UK)

R v Loveridge[2001] EWCA Crim 973 (UK)

INDIAN CASES

Referred to in

Zimbabwe

Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231

REGIONAL AND INTERNATIONAL INSTRUMENTS

African Charter on Human and Peoplesrsquo Rights (adopted 27 June

1981entered into force 21 October 1986) (1982) 21 ILM 58

American Convention on Human Rights (adopted 22 November

1969entered into force 18 July 1978)

European Convention on Human Rights (adopted 4 November 1950

entered into force 3 September 1953)

International Covenant on Civil and Political Rights (adopted 16

-MEMORANDUM for theRESPONDENT-

December 1966 entered into force 23 March 1976) 999 UNTS 171

Universal Declaration of Human Rights (adopted 10 December 1948

UNGA Res 217 A(III)

CONSTITUTION

The Constitution of United States of America 1788

The Constitution of Argentina 1853

The Constitution of Belgium 1831

The Constitution of Brazil 1988

The Constitution Act of Finland 2000

The Constitution of India 1950

STATUTES

MISCELLANEOUS

-MEMORANDUM for theRESPONDENT-

Resolution 1003 (1993) on the ethics of journalism adopted by the

Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

Case Concerning the Arrest Warrant of 11 April 2000 (Democratic

Republic of the Congo v Belgium) (Merits) International Court of Justice

14 February 2002

21

Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary

Assembly of Council of Europe 26 July 1998 Article 14(i)

25

STATEMENT OF RELEVANT FACTS

-MEMORANDUM for theRESPONDENT-

ECONOMIC SCENARIO IN MHUGAN

1 The respondent country Republic of Mhugan is a country which obtained

independence in 1959 and since then it has had a parliamentary form of government1 Its

economy has grown rapidly since the late twentieth century fueled by a combination of

information technology industries manufacturing and financial services2

SOCIAL STATUS OF RHO

2 BansitSangnont better known by his stage name Rho is a pop music singer-

songwriter in Mhugan3 Rho after his music video for his song ldquoPokeacutePokeacuterdquo in 2011 became

very successful and was known throughout the world In early 2013 rumors began to

surface that Rho has been physically andor emotionally abusive to his wife an allegation

that Rho has vehemently denied4

COMPANIES PROVIDING INFORMATION ON SEARCH QUERIES

3 Centiplex Corporation based in Mhugan is the leading Internet services company in

Mhugan5 It runs an Internet search engine More than 80 of all search queries in Mhugan

are conducted through Centiplex and the remaining being conducted through Google6

Dexian is a global information services company based in the United States7 Its core

business is collecting aggregating analyzing and disseminating information relating to

1 Compromis para 1

2 Ibid

3 Compromis para 2

4 Compromis para 3

5 Compromis para4

6 Ibid

7 Compromis para 5

-MEMORANDUM for theRESPONDENT-

individuals8 Dexian claims to have records for almost 500 million people although those

records vary widely in their scope completeness and correctness9 The particular methods

that Dexian uses to combine sources and build individual records are not publicly known

and Dexian claims such information to be a trade secret10

4 Centiplex is a Dexian client and both buys and sells data to Dexian11 Prior to the

2013 Search Privacy Act described below no law or regulation in Mhugan restricted a

search enginersquos ability to collect disclose or use information12

ALLEGATIONS IMPOSED ON THON SANG

5 Thon Sang maintains an active blog on the Centiplex platform in Mhugan13 The ad

revenue goes to the centiplex and is not shared with the bloggers themselves14Sang is

ldquocelebrity-obsessedrdquo and his news is dedicated to Mhuganian celebrities15Sang has blogged

about the rumors of Rho abusing his wife writing that ldquoif true people should boycott Rhorsquos

music in protestrdquo16 On May 1 2013 Sang posted a voicemail that Rho left for his friend

8 Ibid

9 Ibid

10 Ibid

11 Compromis para 6

12 Ibid

13 Compromis para 7

14 Ibid

15 Compromis para 8

16 Ibid

-MEMORANDUM for theRESPONDENT-

TaurAklamit17 In the voicemail someone identifying himself as ldquoBansitrdquo said that he was

ldquofurious with my wife for not being more obedientrdquo and that ldquoI need to give her a good

smacking to show her whorsquos in chargerdquo18 Sang wrote in his post that he got this recording

from someone who tried to get into Aklamitrsquos voicemail Sang also wrote ldquoso the rumors are

true Boycott Rho and donrsquot even think about dancing the PokeacutePokeacuterdquo 19

6 The next day Sang posted again to gain more popularity- ldquoMore evidence this time

from Rhorsquos web searches which include lsquohow to control your wifersquo and lsquowhipping

techniquesrsquordquo Sang was very anxious to acquire information regarding Rho and therefore he

purchased Rhorsquos profile from Dexian for 20000 MHD which is approximately 002 Euros

7 On May 4 Rho held a press conference with his wife at his side where he stated

that he left the recorded voicemail for his friend TaurAlkamit and he would never even

dream of striking his wife He called Sang and whoever had recorded the voicemail

ldquovicious unethical and unprofessional rumor mongersrdquo who were ldquocriminals who deserve

to be punishedrdquo while his wife was busy listening to him and did not utter a word at the

conference On May 5 Sang again posted a reply stating that he was disgruntled by Rhorsquos

explanations

8 Sang clarified that the source of the voicemail had explained to him how he or she

had come across the message20 The source had entered Aklamitrsquos number by mistake

Aklamit and the source apparently shared the same password because neither had ever 17 Compromis para 9

18 Ibid

19 Ibid

20 Compromis para13

-MEMORANDUM for theRESPONDENT-

changed it from the default password for the voicemail system ldquo123456rdquo Before the source

had realized the mistake heshe clicked on the first message and heard it21 Suspecting that

the ldquoBansitrdquo on the message was in fact Rho the source then realized that this mailbox was

not hishers The source downloaded the copy of the message and sent the copy to Sang but

asking him not to reveal hisher identity22

PROVISIONS OF WIRETAP ACT

9 Mhuganian law makes it illegal under the Wiretap Act to ldquointentionally intercept or

obtain unauthorized access to any telephone or electronic communications whether in

transit or in storage23rdquo The Wiretap Act further makes it illegal for ldquoany person to

disseminate the contents of a telephone or electronic communications that the person knows

to have been unlawfully intercepted or obtained under this Act24rdquo The Wiretap Act provides

for both civil and criminal penalties Among the civil penalties are statutory damages up to

1000000 MHD The portion of the Wiretap Act described here contains an exception for

anyone acting in an official government capacity25

The Wiretap Act defines ndash

a) ldquodirectly accessedrdquo to include both (1) a link that leads directly to the material and

(2) any link that from the surrounding context reasonably indicates that it will lead

21 Ibid

22 Ibid

23 Compromis para14

24 Ibid

25 Ibid

-MEMORANDUM for theRESPONDENT-

to the prohibited material and does in fact lead to such material regardless of how

many links it takes to reach the prohibited material26

b) A search engine can meet its obligations under such an order by de-indexing the

relevant web pages but such de-indexing is not required so long as the relevant web

pages do not appear on the first page of search results27

c) The order remains in force unless and until the court rules against the plaintiff on

the Wiretap Act claim (or an appellate court rules against the plaintiff on this claim)

or the case is otherwise dismissed If the plaintiff prevails on the claim and

continues to prevail through any appeals the order effectively becomes permanent28

d) The Act provides for both civil and criminal penalties for a violation of such a

search engine order with statutory damages of up to 10000 MHD per day of

violation for a negligent violation and up to 1000000 MHD per day for an

intentional violation Criminal penalties are only available for an intentional

violation29

10 On May 8 2013 Rho sued Sang under the Wiretap Act for knowingly disseminating

the contents of unlawfully obtained communications30 Rho immediately applied for a search

engine order under the Act against Centiplex which the court granted31 The court

26 Compromis para15

27 Ibid

28 Ibid

29 Ibid

30 Compromis para16

31 ibid

-MEMORANDUM for theRESPONDENT-

ultimately ruled that Sang had violated the Wiretap Act and awarded statutory damages to

Rho of 400000 MHD In so ruling the court found under Mhuganian law that while the

sourcersquos initial hearing of the voicemail message may have been accidental the subsequent

downloading of the message to hisher computer was intentional and unauthorized under the

Wiretap Act and that furthermore because Sang had recounted on his blog all of the

relevant facts about the circumstances under which the source had acquired the voicemail

message Sang had the knowledge required to be liable under the Act32

11 Centiplex was given the search engine order by the court for disseminating the

contents of the recorded voicemail under the wiretap act and centiplex immediately began to

comply with the order entered against it33 Centiplex made an appearance in Rhorsquos case

against Sang in order to challenge the validity of the search engine order but the court

upheld the order34

12 In the same lawsuit Rho also sued the unknown source of the recorded voicemail

message as a ldquoJohn Doe35rdquo Rho subpoenaed Sang for the identity of that person Sang filed

a motion with the court to quash the subpoena asserting a privilege to hide the identity of

his source36 The court denied the motion to quash as under Mhuganian law the court does

recognize a qualified privilege not to reveal sources but only to ldquoprofessional journalistsrdquo

32 ibid

33 Compromis para1617

34 Ibid

35 Compromis para18

36 Ibid

-MEMORANDUM for theRESPONDENT-

but Sang was not a professional journalist as he did not disseminate the information to the

public for the gain of livelihood as the revenue goes to the CentiplexHowever the court did

grant a stay of the subpoena

2013 SEARCH PRIVACY ACT

13 On May 15 2013 Mhugan enacted the Search Privacy Act which makes it unlawful

for a search engine to sell information about a personrsquos search queries without that personrsquos

consent37

a) For purposes of this Act a ldquosalerdquo is defined to be a ldquotransfer in exchange for

anything of valuerdquo

b) Information is considered to be information ldquoabout a personrsquos search queriesrdquo if

individual search queries are associated with ldquoany identifier including without

limitation a name address phone number email address government identification

number date of birth or IP addressrdquo

c) The Act does not apply to non-sale transfers of such information nor does it apply

to any subsequent transfers of the same information after an initial transfer by the

search engine whether or not those subsequent transfers are sales

d) The Act contains explicit exceptions for disclosures to law enforcement agencies

pursuant to a warrant subpoena or court order and disclosures incident to the

search enginersquos ordinary course of business

e) The Act provides for compensatory or statutory damages at the plaintiffrsquos election

as well as punitive damages for a ldquowillful violationrdquo

f) The Act is scheduled to become effective on May 1 201438

37 Compromis para19

38 ibid

-MEMORANDUM for theRESPONDENT-

14 On May 20 2013 Centiplex sued in Mhugan to have the Search Privacy Act

declared invalid under the laws and Constitution of Mhugan39 But the court held the search

privacy act to be valid40

15 All of the rulings described above were appealed to the Mhugan Supreme Court the

highest appellate court in Mhugan and the Mhugan Supreme Court dismissed all of the

appeals41

16 Sang and Centiplex have challenged all of the following in the Universal Court of

Human Rights42

a) the damages imposed on Sang for disseminating the recorded voicemail

b) the subpoena to Sang to disclose the source of the recorded voicemail

c) the order against Centiplex requiring that webpages that link to the recorded

voicemail including Sangrsquos blog posts never appear on the first page of search

results

d) the validity of the 2013 Search Privacy Act43

39 Compromis para 20

40 Ibid

41 Compromis para21

42 Compromis para 22

43 Ibid

-MEMORANDUM for theRESPONDENT-

17 No law domestic or international restricts either Sangrsquos or Centiplexrsquos standing to

bring these challenges44 Both Sangrsquos and Centiplexrsquos positions have been rejected on the

merits in the domestic courts of Mhugan and all appeals or other legal remedies within the

Mhuganian court system have been exhausted45

STATEMENT OF JURISDICTION

CASE CONCERNING RIGHTS AND OBLIGATIONS UNDER THE UDHR

SANG AND CENTIPLEX Applicants

v

44 Compromis para 23

45 Ibid

-MEMORANDUM for theRESPONDENT-

THE REPUBLIC OF MHUGAN Respondent

ldquoSang and Centiplex (the Applicants) and the Republic of Mhugan (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 Mhuganian means the

Universal Freedom of Expression Court has jurisdiction in this matterrdquo

IN THE UNIVERSAL FREEDOM OF EXPRESSION COURT

THE RESPONDENT MOST HUMBLY AND RESPECTFULLY SUBMITS TO THE

JURISDICTION OF THIS HONrsquoBLE COURT

QUESTIONSPRESENTED

THE FOLLOWING QUESTIONS HAVE BEEN PRESENTED BEFORE THE COURT

FOR ITS DETERMINATION

1 WHETHER THE DAMAGES IMPOSED ON THE APPLICANT ARE CONSISTENT

WITH THE PROVISIONS OF THE UDHR

-MEMORANDUM for theRESPONDENT-

2 WHETHER THE REQUIREMENT TO DISCLOSE THE SOURCE OF THE

RECORDED VOICEMAIL IS CONSISTENT WITH THE PROVISIONS OF THE

UDHR

3 WHETHER THE SECTION OF THE WIRETAP ACT THAT PROVIDES FOR A

SPECIAL PROVISIONAL REMEDY IS CONSISTENT WITH THE UDHR

4 WHETHER THE PROVISIONS OF THE 2013 SEARCH PRIVACY ACT ARE

CONSISTENT WITH THE UDHR

SUMMARYOF ARGUMENTS

A The courts finding imposed damages of 400000 MHD on the Applicant First the

requirement does not infringe the right to freedom of expression of the Applicant Herein

firstly Respondent submits that the impugned requirement does not restrict the right to

freedom of expression and secondly it does not cause a chilling effect Second property

rights under Article 17 are not infringed because the Applicant cannot enjoy his right by

violating ones right under Article 12 The allegation emphasised by the Applicant does not

contribute to public debate as there are no facts substantiating the allegation Third the

-MEMORANDUM for theRESPONDENT-

Respondent possess a reasonable expectation of privacy under Article 12 which has been

violated after the dissemination of the unauthorised information took place In any event the

restriction is permissible under Article 29(2) of the UDHR It is prescribedby law under the

Wiretap Act The situation in Mhugan shows that the Wiretap Act is clearly in pursuit of the

legitimate aims of serves to protect an individualrsquos right from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR The restriction is necessary in a

democratic society as it corresponds to a pressing social need and is proportionate to the

legitimate aims

B The requirement by the court has mandated the Applicant to disclose the identity of

the source of the voicemail and it does not contravene the rights to freedom of expression

enshrined in Article 19 of the UDHR Herein firstly Article 19 does not include the right to

anonymity secondly it does not cause a chilling effect and finally the requirement does

not constitute prior restraint

Further the requirement does notcontravene the right to privacy guaranteed under Article 12

of the UDHR because there is no actual subjective expectation of privacy which is

objectively reasonable Finally theright to remedy enshrined in Article 8 of the UDHR has

not been violated because the Respondent has a right to effective remedy which is possible

only when the Applicant will disclose the name of the source of the information that

infiltrated the voicemailIn any event these measures are valid limitations under Article

29(2) of the UDHR Theysatisfy the three-tiered test of legality legitimacy and necessity

C The requirement by the Court mandated Centiplex to remove the impugned

information from the first page of search result First it does not contravene the right to

expression enshrined in Article 19 of the UDHR Herein firstly the restriction doesnt

impose filtering or prior restraint secondly it does not create a Chilling effect Second the

-MEMORANDUM for theRESPONDENT-

right to privacy guaranteed under Article 12 is violated as it has a superseding effect on

Applicants right guaranteed under Article 19 In any event these measures are valid

limitations under Article 29(2) of the UDHR They satisfy the three-tier test of legality

legitimacy and necessity

D The requirement under the 2013 Search Privacy Act is consistent with the UDHR

First the requirement does not contravene right to privacy enshrined in Article 12 of the

UDHRItexemplifies how in certain circumstances the right to privacy outweighs the right

to freedom of expression Second it does not contravene Article 19 as it complies with the

three-tier test under Article 29(2) The restriction is prescribed by law as it is made under the

authority of the SPA It is pursuant to the legitimate aim of protection of rights of others as

the Respondent possesses a reasonable expectation of privacy Further the restriction is

necessary in ademocratic society as the dissemination does not warrant to a debate of

general interest

ARGUMENTS

A THE DAMAGES IMPOSED ON THE APPLICANT ARE JUST FAIR AND

CONSISTENT WITH THE PROVISIONS OF THE UDHR

1 The courts finding imposed damages of 400000 MHD46 on the Applicant

Respondent submits that this requirement is consistent with the right to freedom of speech

and expression under Article 19 [I] right to property under Article 17 [II] and valid under

46 Compromis para16

-MEMORANDUM for theRESPONDENT-

Article 29(2) [III] Moreover the dissemination was privacy intrusive under Article 12

UDHR [IV]

I The requirement is not a restriction on Article 19 UDHR

2 Article 19 guarantees ldquothe right to freedom of opinion and expression hellip without

interferencehellipthrough any mediardquo47 Respondent submits that the impugned requirement

does not restrict the right to freedom of expression [a] and does not cause a chilling effect

[b]

a) The requirement does not restrict the freedom of expression

3 Notwithstanding the pressrsquo vital ldquowatchdogrdquo role48 journalists cannot be released

from their duty to obey the ordinary law on the basis that Article 19 of the UDHR affords

them protection49 In Stoll v Switzerland the ECtHR held that there is no lsquowholly

unrestricted freedom of expression even with respect to press reporting of matters of serious

public concernrsquo50 The Respondent emphasises the Courtrsquos sentiment that journalistic

ethics51 play a considerably important role lsquogiven the influence wielded by the media in

contemporary societyrsquo52 It is no excuse to say that Sangrsquos duty as a journalist compelled

47 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19 See also International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

48 Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government Ethics(The ANNALS of the American Academy of Political and Social Science1995 )

49Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

50Stoll (n 49) BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR 20 May 1999) 65

51 Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5 October 2013

52Stoll (n 49) 104

-MEMORANDUM for theRESPONDENT-

him to commit an unlawful act53 when in fact this duty could have been discharged through

legal and ethical means54

4 Moreover it is established that ldquonews broadcasting should be based on truthfulness

ensured by the appropriate means of verification and proof and impartiality in

presentation description and narrationrdquo55 Sang clearly did not follow these standards56

Having in mind that ldquoduties and responsibilities which accompany the exercise of the right

tofreedom of expression by media professionals assume special significance in situations

ofconflict and tensionrdquo57 it can be manifestly perceived that Rho had sent the voicemailonly

to let off some steam to his good friend Taur58 which proves prima faciethere was no such

situation prevailing and dissemination does not meet these standards

b) The impugned requirement does not cause a lsquoChilling effectrsquo

5 Ultimately the Respondent reiterates that there is no interference with the freedom

of the press59 Further the damages60 imposed upon Sang do not amount to a form of

censorship61 intended to discourage the press from expressing criticism62 Requirement to

53 Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt accessed 5 October 2013

54 Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013

55 Resolution 1003 (1993) on the ethics of journalism adopted by the Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

56 Compromis para13

57Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

58 Compromis para11

59Freedom of the Press lthttpwwwpuclorgfrom-archivesMediafreedom-presshtmgt accessed 9 October 210360 Compromis para 16

61 Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October 2013

62Stoll (n 49) 154

-MEMORANDUM for theRESPONDENT-

pay damages was merely to discourage journalist for adopting unlawful methods for

obtaining information63 protect right to privacy enshrined under Article 12 UDHR and

public order64 and is wholly proportionate in this instance The safeguard afforded by

freedom of speech in relation to journalistic reporting on issues of general interest is subject

to the journalistacting in good faith and in accordance with the ethics of journalism65

Regardless of the Applicantrsquos misguided beliefs and best intentions his profession is no

source of immunity or impunity66 the road to perdition is paved with bona-fide intentions

II The requirement does not restrict Article 17 UDHR

6 Sang had doubtlessly breached his lsquoduties and responsibilitiesrsquo67 the ethics of

journalism68 and did not act lsquoin good faithrsquo69Besides the information lsquodoes not bear on

matters of general importancersquo70 and its dissemination is an abuse of the pressrsquos ldquowatchdogrdquo

role71To enhance this contention reliance is placed upon three groundsFirst while earlier

63 Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-

codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

64 Public Order lthttpwwwusiporgguiding-principles-stabilization-and-reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October 2013

65Stoll (n 32) 103

66Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) International Court of Justice 14 February 2002

67The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

68BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20 May 1999)

69Pedersen (n 44)

70Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

71Warren(n 49)

-MEMORANDUM for theRESPONDENT-

decisions of the Strasbourg courts tend not to tolerate high damages awards72 none of them

involved the scale of character assassination like in this case73Second spousal abuse74 is a

serious allegation aimed at scandalising Rhorsquos reputation for negative publicity75 purposes

and third such an allegation does not contribute to public debate where there are no facts

substantiating the allegation76

7 Furthermore such an allegation is solely speculative and was coldly calculated to

inflict maximum damage to Rhorsquos reputation77 Rhorsquos loss must be seen in the context of

his negative publicity78 and its impact on his pecuniary loss arising from the protest79 In

addition to that the grief over loss of reputation and honour which was clearly compounded

by the tasteless spousal abuse allegations80 Rho has absolute right to ask for damages since

his right to privacy is in issue and since ldquothe possibility of taking an action under civil law

should be guaranteed to enable a victim to claim possible damages for invasion of

privacyrdquo81 Furthermore the damages are reasonable and does not violate right to enjoyment

of property of the Applicant

72Jersild v Denmark App no 159808 (ECHR 23 September 1994)

73Clarification 10

74Domestic Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt accessed 6 October 2013

75 What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October 2013

76 Compromis para12

77 Compromis para13

78 Clarification 10

79 Compromis para9

80Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June 2007)

81 Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary Assembly of Council of Europe 26 July 1998 Article 14(i)

-MEMORANDUM for theRESPONDENT-

III In any event the requirement is permissible under Article 29(2) UDHR

a) The requirement is prescribed by law

8 Imposing damages on Sang for breach of the Wiretap Act82 is a justified interference

with his freedom of expression The interference in question is validly provided by law and

serves to protect an individualrsquos right to protection from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR

b) The requirement is in pursuance of legitimate aims

9 The ECtHR in Handyside v United Kingdom83 acknowledged that lsquostate authorities

are in principle in a better position than the international judge to give an opinion on the

exact content of these requirements as well as on the necessity of a restriction of a

penaltyrsquo84 Whether a restriction is necessary in the circumstances is therefore an inquiry

based on the facts and circumstances prevailing in the country concerned which the national

authorities are in a better position to undertake85 For the foregoing reasons the requirement

is in pursuance of legitimate aims

c) The restriction is necessary in a democratic society

10 The thrust of the Mhugan courtrsquos reasoning in imposing damages on Sang was

directed at his dissemination of lsquounlawfully obtained materialrsquo86 ie Rhorsquos recorded

82 Compromis para14

83 App no 549372( ECHR 7 December 1976)

84Handyside(n 28) at [48] The Sunday Times (n 8) Joint Dissenting Opinion of Judges Wiarda Cremona Thor Vilhjalmsson Ryssdal Ganshof van der Meersch Sir Gerald Fitzmaurice Bindschedler-Robert Liesh and Matscher

85Case of Klass and Others v Germany App no 502971(EHRR 6 September 1978)

86 Compromis para16

-MEMORANDUM for theRESPONDENT-

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 16: Oxford Respondent

Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987)

Cox v New Hampshire 312 US 569 (1941)

Freedman v Maryland 380 US 51 (1965)

Madsen v Womenrsquos Health CenterInc et al 512 US 753 (1994)

United States v OBrien 391 US 367 (1968)

Turner Broadcasting System Inc v FCC 512 US 622 (1994)

Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton

536 US 150 (2002)

Ward v Rock Against Racism 491 US 781 (1989)

Galella v Onassis 487 F 2d 986 (1973)

Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

Bartnicki v Vopper532 US 514 (2001)

R v Oakes [1986] 1 SCR 103

New York Times Co v United States 403 US 713

Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186

(1984)

-MEMORANDUM for theRESPONDENT-

HUMAN RIGHTS COMMITTEE

Referred to in

Aduayom Diasso and Dobou v Togo Communications Nos 4221990

4231990

and 4241990 UN Doc CCPRC51D4221990 4231990 and 4241990

(1996)

ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN

Doc CCPRC85D11802003 (2006) (UN Human Rights Committee)

ENGLISH CASES

Referred to

in

A v B and Anr[2002] EWCA Civ 337 (UK)

McKennitt v Ash [2007] 3 WLR 194

Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK)

D v L [2004] EMLR 1 (UK)

Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK)

Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK)

-MEMORANDUM for theRESPONDENT-

R v Broadcasting Standards Commission ex parte British Broadcasting

Corporation (Liberty intervening) [2000] 3 All ER 989 (UK)

R v Loveridge[2001] EWCA Crim 973 (UK)

INDIAN CASES

Referred to in

Zimbabwe

Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231

REGIONAL AND INTERNATIONAL INSTRUMENTS

African Charter on Human and Peoplesrsquo Rights (adopted 27 June

1981entered into force 21 October 1986) (1982) 21 ILM 58

American Convention on Human Rights (adopted 22 November

1969entered into force 18 July 1978)

European Convention on Human Rights (adopted 4 November 1950

entered into force 3 September 1953)

International Covenant on Civil and Political Rights (adopted 16

-MEMORANDUM for theRESPONDENT-

December 1966 entered into force 23 March 1976) 999 UNTS 171

Universal Declaration of Human Rights (adopted 10 December 1948

UNGA Res 217 A(III)

CONSTITUTION

The Constitution of United States of America 1788

The Constitution of Argentina 1853

The Constitution of Belgium 1831

The Constitution of Brazil 1988

The Constitution Act of Finland 2000

The Constitution of India 1950

STATUTES

MISCELLANEOUS

-MEMORANDUM for theRESPONDENT-

Resolution 1003 (1993) on the ethics of journalism adopted by the

Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

Case Concerning the Arrest Warrant of 11 April 2000 (Democratic

Republic of the Congo v Belgium) (Merits) International Court of Justice

14 February 2002

21

Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary

Assembly of Council of Europe 26 July 1998 Article 14(i)

25

STATEMENT OF RELEVANT FACTS

-MEMORANDUM for theRESPONDENT-

ECONOMIC SCENARIO IN MHUGAN

1 The respondent country Republic of Mhugan is a country which obtained

independence in 1959 and since then it has had a parliamentary form of government1 Its

economy has grown rapidly since the late twentieth century fueled by a combination of

information technology industries manufacturing and financial services2

SOCIAL STATUS OF RHO

2 BansitSangnont better known by his stage name Rho is a pop music singer-

songwriter in Mhugan3 Rho after his music video for his song ldquoPokeacutePokeacuterdquo in 2011 became

very successful and was known throughout the world In early 2013 rumors began to

surface that Rho has been physically andor emotionally abusive to his wife an allegation

that Rho has vehemently denied4

COMPANIES PROVIDING INFORMATION ON SEARCH QUERIES

3 Centiplex Corporation based in Mhugan is the leading Internet services company in

Mhugan5 It runs an Internet search engine More than 80 of all search queries in Mhugan

are conducted through Centiplex and the remaining being conducted through Google6

Dexian is a global information services company based in the United States7 Its core

business is collecting aggregating analyzing and disseminating information relating to

1 Compromis para 1

2 Ibid

3 Compromis para 2

4 Compromis para 3

5 Compromis para4

6 Ibid

7 Compromis para 5

-MEMORANDUM for theRESPONDENT-

individuals8 Dexian claims to have records for almost 500 million people although those

records vary widely in their scope completeness and correctness9 The particular methods

that Dexian uses to combine sources and build individual records are not publicly known

and Dexian claims such information to be a trade secret10

4 Centiplex is a Dexian client and both buys and sells data to Dexian11 Prior to the

2013 Search Privacy Act described below no law or regulation in Mhugan restricted a

search enginersquos ability to collect disclose or use information12

ALLEGATIONS IMPOSED ON THON SANG

5 Thon Sang maintains an active blog on the Centiplex platform in Mhugan13 The ad

revenue goes to the centiplex and is not shared with the bloggers themselves14Sang is

ldquocelebrity-obsessedrdquo and his news is dedicated to Mhuganian celebrities15Sang has blogged

about the rumors of Rho abusing his wife writing that ldquoif true people should boycott Rhorsquos

music in protestrdquo16 On May 1 2013 Sang posted a voicemail that Rho left for his friend

8 Ibid

9 Ibid

10 Ibid

11 Compromis para 6

12 Ibid

13 Compromis para 7

14 Ibid

15 Compromis para 8

16 Ibid

-MEMORANDUM for theRESPONDENT-

TaurAklamit17 In the voicemail someone identifying himself as ldquoBansitrdquo said that he was

ldquofurious with my wife for not being more obedientrdquo and that ldquoI need to give her a good

smacking to show her whorsquos in chargerdquo18 Sang wrote in his post that he got this recording

from someone who tried to get into Aklamitrsquos voicemail Sang also wrote ldquoso the rumors are

true Boycott Rho and donrsquot even think about dancing the PokeacutePokeacuterdquo 19

6 The next day Sang posted again to gain more popularity- ldquoMore evidence this time

from Rhorsquos web searches which include lsquohow to control your wifersquo and lsquowhipping

techniquesrsquordquo Sang was very anxious to acquire information regarding Rho and therefore he

purchased Rhorsquos profile from Dexian for 20000 MHD which is approximately 002 Euros

7 On May 4 Rho held a press conference with his wife at his side where he stated

that he left the recorded voicemail for his friend TaurAlkamit and he would never even

dream of striking his wife He called Sang and whoever had recorded the voicemail

ldquovicious unethical and unprofessional rumor mongersrdquo who were ldquocriminals who deserve

to be punishedrdquo while his wife was busy listening to him and did not utter a word at the

conference On May 5 Sang again posted a reply stating that he was disgruntled by Rhorsquos

explanations

8 Sang clarified that the source of the voicemail had explained to him how he or she

had come across the message20 The source had entered Aklamitrsquos number by mistake

Aklamit and the source apparently shared the same password because neither had ever 17 Compromis para 9

18 Ibid

19 Ibid

20 Compromis para13

-MEMORANDUM for theRESPONDENT-

changed it from the default password for the voicemail system ldquo123456rdquo Before the source

had realized the mistake heshe clicked on the first message and heard it21 Suspecting that

the ldquoBansitrdquo on the message was in fact Rho the source then realized that this mailbox was

not hishers The source downloaded the copy of the message and sent the copy to Sang but

asking him not to reveal hisher identity22

PROVISIONS OF WIRETAP ACT

9 Mhuganian law makes it illegal under the Wiretap Act to ldquointentionally intercept or

obtain unauthorized access to any telephone or electronic communications whether in

transit or in storage23rdquo The Wiretap Act further makes it illegal for ldquoany person to

disseminate the contents of a telephone or electronic communications that the person knows

to have been unlawfully intercepted or obtained under this Act24rdquo The Wiretap Act provides

for both civil and criminal penalties Among the civil penalties are statutory damages up to

1000000 MHD The portion of the Wiretap Act described here contains an exception for

anyone acting in an official government capacity25

The Wiretap Act defines ndash

a) ldquodirectly accessedrdquo to include both (1) a link that leads directly to the material and

(2) any link that from the surrounding context reasonably indicates that it will lead

21 Ibid

22 Ibid

23 Compromis para14

24 Ibid

25 Ibid

-MEMORANDUM for theRESPONDENT-

to the prohibited material and does in fact lead to such material regardless of how

many links it takes to reach the prohibited material26

b) A search engine can meet its obligations under such an order by de-indexing the

relevant web pages but such de-indexing is not required so long as the relevant web

pages do not appear on the first page of search results27

c) The order remains in force unless and until the court rules against the plaintiff on

the Wiretap Act claim (or an appellate court rules against the plaintiff on this claim)

or the case is otherwise dismissed If the plaintiff prevails on the claim and

continues to prevail through any appeals the order effectively becomes permanent28

d) The Act provides for both civil and criminal penalties for a violation of such a

search engine order with statutory damages of up to 10000 MHD per day of

violation for a negligent violation and up to 1000000 MHD per day for an

intentional violation Criminal penalties are only available for an intentional

violation29

10 On May 8 2013 Rho sued Sang under the Wiretap Act for knowingly disseminating

the contents of unlawfully obtained communications30 Rho immediately applied for a search

engine order under the Act against Centiplex which the court granted31 The court

26 Compromis para15

27 Ibid

28 Ibid

29 Ibid

30 Compromis para16

31 ibid

-MEMORANDUM for theRESPONDENT-

ultimately ruled that Sang had violated the Wiretap Act and awarded statutory damages to

Rho of 400000 MHD In so ruling the court found under Mhuganian law that while the

sourcersquos initial hearing of the voicemail message may have been accidental the subsequent

downloading of the message to hisher computer was intentional and unauthorized under the

Wiretap Act and that furthermore because Sang had recounted on his blog all of the

relevant facts about the circumstances under which the source had acquired the voicemail

message Sang had the knowledge required to be liable under the Act32

11 Centiplex was given the search engine order by the court for disseminating the

contents of the recorded voicemail under the wiretap act and centiplex immediately began to

comply with the order entered against it33 Centiplex made an appearance in Rhorsquos case

against Sang in order to challenge the validity of the search engine order but the court

upheld the order34

12 In the same lawsuit Rho also sued the unknown source of the recorded voicemail

message as a ldquoJohn Doe35rdquo Rho subpoenaed Sang for the identity of that person Sang filed

a motion with the court to quash the subpoena asserting a privilege to hide the identity of

his source36 The court denied the motion to quash as under Mhuganian law the court does

recognize a qualified privilege not to reveal sources but only to ldquoprofessional journalistsrdquo

32 ibid

33 Compromis para1617

34 Ibid

35 Compromis para18

36 Ibid

-MEMORANDUM for theRESPONDENT-

but Sang was not a professional journalist as he did not disseminate the information to the

public for the gain of livelihood as the revenue goes to the CentiplexHowever the court did

grant a stay of the subpoena

2013 SEARCH PRIVACY ACT

13 On May 15 2013 Mhugan enacted the Search Privacy Act which makes it unlawful

for a search engine to sell information about a personrsquos search queries without that personrsquos

consent37

a) For purposes of this Act a ldquosalerdquo is defined to be a ldquotransfer in exchange for

anything of valuerdquo

b) Information is considered to be information ldquoabout a personrsquos search queriesrdquo if

individual search queries are associated with ldquoany identifier including without

limitation a name address phone number email address government identification

number date of birth or IP addressrdquo

c) The Act does not apply to non-sale transfers of such information nor does it apply

to any subsequent transfers of the same information after an initial transfer by the

search engine whether or not those subsequent transfers are sales

d) The Act contains explicit exceptions for disclosures to law enforcement agencies

pursuant to a warrant subpoena or court order and disclosures incident to the

search enginersquos ordinary course of business

e) The Act provides for compensatory or statutory damages at the plaintiffrsquos election

as well as punitive damages for a ldquowillful violationrdquo

f) The Act is scheduled to become effective on May 1 201438

37 Compromis para19

38 ibid

-MEMORANDUM for theRESPONDENT-

14 On May 20 2013 Centiplex sued in Mhugan to have the Search Privacy Act

declared invalid under the laws and Constitution of Mhugan39 But the court held the search

privacy act to be valid40

15 All of the rulings described above were appealed to the Mhugan Supreme Court the

highest appellate court in Mhugan and the Mhugan Supreme Court dismissed all of the

appeals41

16 Sang and Centiplex have challenged all of the following in the Universal Court of

Human Rights42

a) the damages imposed on Sang for disseminating the recorded voicemail

b) the subpoena to Sang to disclose the source of the recorded voicemail

c) the order against Centiplex requiring that webpages that link to the recorded

voicemail including Sangrsquos blog posts never appear on the first page of search

results

d) the validity of the 2013 Search Privacy Act43

39 Compromis para 20

40 Ibid

41 Compromis para21

42 Compromis para 22

43 Ibid

-MEMORANDUM for theRESPONDENT-

17 No law domestic or international restricts either Sangrsquos or Centiplexrsquos standing to

bring these challenges44 Both Sangrsquos and Centiplexrsquos positions have been rejected on the

merits in the domestic courts of Mhugan and all appeals or other legal remedies within the

Mhuganian court system have been exhausted45

STATEMENT OF JURISDICTION

CASE CONCERNING RIGHTS AND OBLIGATIONS UNDER THE UDHR

SANG AND CENTIPLEX Applicants

v

44 Compromis para 23

45 Ibid

-MEMORANDUM for theRESPONDENT-

THE REPUBLIC OF MHUGAN Respondent

ldquoSang and Centiplex (the Applicants) and the Republic of Mhugan (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 Mhuganian means the

Universal Freedom of Expression Court has jurisdiction in this matterrdquo

IN THE UNIVERSAL FREEDOM OF EXPRESSION COURT

THE RESPONDENT MOST HUMBLY AND RESPECTFULLY SUBMITS TO THE

JURISDICTION OF THIS HONrsquoBLE COURT

QUESTIONSPRESENTED

THE FOLLOWING QUESTIONS HAVE BEEN PRESENTED BEFORE THE COURT

FOR ITS DETERMINATION

1 WHETHER THE DAMAGES IMPOSED ON THE APPLICANT ARE CONSISTENT

WITH THE PROVISIONS OF THE UDHR

-MEMORANDUM for theRESPONDENT-

2 WHETHER THE REQUIREMENT TO DISCLOSE THE SOURCE OF THE

RECORDED VOICEMAIL IS CONSISTENT WITH THE PROVISIONS OF THE

UDHR

3 WHETHER THE SECTION OF THE WIRETAP ACT THAT PROVIDES FOR A

SPECIAL PROVISIONAL REMEDY IS CONSISTENT WITH THE UDHR

4 WHETHER THE PROVISIONS OF THE 2013 SEARCH PRIVACY ACT ARE

CONSISTENT WITH THE UDHR

SUMMARYOF ARGUMENTS

A The courts finding imposed damages of 400000 MHD on the Applicant First the

requirement does not infringe the right to freedom of expression of the Applicant Herein

firstly Respondent submits that the impugned requirement does not restrict the right to

freedom of expression and secondly it does not cause a chilling effect Second property

rights under Article 17 are not infringed because the Applicant cannot enjoy his right by

violating ones right under Article 12 The allegation emphasised by the Applicant does not

contribute to public debate as there are no facts substantiating the allegation Third the

-MEMORANDUM for theRESPONDENT-

Respondent possess a reasonable expectation of privacy under Article 12 which has been

violated after the dissemination of the unauthorised information took place In any event the

restriction is permissible under Article 29(2) of the UDHR It is prescribedby law under the

Wiretap Act The situation in Mhugan shows that the Wiretap Act is clearly in pursuit of the

legitimate aims of serves to protect an individualrsquos right from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR The restriction is necessary in a

democratic society as it corresponds to a pressing social need and is proportionate to the

legitimate aims

B The requirement by the court has mandated the Applicant to disclose the identity of

the source of the voicemail and it does not contravene the rights to freedom of expression

enshrined in Article 19 of the UDHR Herein firstly Article 19 does not include the right to

anonymity secondly it does not cause a chilling effect and finally the requirement does

not constitute prior restraint

Further the requirement does notcontravene the right to privacy guaranteed under Article 12

of the UDHR because there is no actual subjective expectation of privacy which is

objectively reasonable Finally theright to remedy enshrined in Article 8 of the UDHR has

not been violated because the Respondent has a right to effective remedy which is possible

only when the Applicant will disclose the name of the source of the information that

infiltrated the voicemailIn any event these measures are valid limitations under Article

29(2) of the UDHR Theysatisfy the three-tiered test of legality legitimacy and necessity

C The requirement by the Court mandated Centiplex to remove the impugned

information from the first page of search result First it does not contravene the right to

expression enshrined in Article 19 of the UDHR Herein firstly the restriction doesnt

impose filtering or prior restraint secondly it does not create a Chilling effect Second the

-MEMORANDUM for theRESPONDENT-

right to privacy guaranteed under Article 12 is violated as it has a superseding effect on

Applicants right guaranteed under Article 19 In any event these measures are valid

limitations under Article 29(2) of the UDHR They satisfy the three-tier test of legality

legitimacy and necessity

D The requirement under the 2013 Search Privacy Act is consistent with the UDHR

First the requirement does not contravene right to privacy enshrined in Article 12 of the

UDHRItexemplifies how in certain circumstances the right to privacy outweighs the right

to freedom of expression Second it does not contravene Article 19 as it complies with the

three-tier test under Article 29(2) The restriction is prescribed by law as it is made under the

authority of the SPA It is pursuant to the legitimate aim of protection of rights of others as

the Respondent possesses a reasonable expectation of privacy Further the restriction is

necessary in ademocratic society as the dissemination does not warrant to a debate of

general interest

ARGUMENTS

A THE DAMAGES IMPOSED ON THE APPLICANT ARE JUST FAIR AND

CONSISTENT WITH THE PROVISIONS OF THE UDHR

1 The courts finding imposed damages of 400000 MHD46 on the Applicant

Respondent submits that this requirement is consistent with the right to freedom of speech

and expression under Article 19 [I] right to property under Article 17 [II] and valid under

46 Compromis para16

-MEMORANDUM for theRESPONDENT-

Article 29(2) [III] Moreover the dissemination was privacy intrusive under Article 12

UDHR [IV]

I The requirement is not a restriction on Article 19 UDHR

2 Article 19 guarantees ldquothe right to freedom of opinion and expression hellip without

interferencehellipthrough any mediardquo47 Respondent submits that the impugned requirement

does not restrict the right to freedom of expression [a] and does not cause a chilling effect

[b]

a) The requirement does not restrict the freedom of expression

3 Notwithstanding the pressrsquo vital ldquowatchdogrdquo role48 journalists cannot be released

from their duty to obey the ordinary law on the basis that Article 19 of the UDHR affords

them protection49 In Stoll v Switzerland the ECtHR held that there is no lsquowholly

unrestricted freedom of expression even with respect to press reporting of matters of serious

public concernrsquo50 The Respondent emphasises the Courtrsquos sentiment that journalistic

ethics51 play a considerably important role lsquogiven the influence wielded by the media in

contemporary societyrsquo52 It is no excuse to say that Sangrsquos duty as a journalist compelled

47 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19 See also International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

48 Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government Ethics(The ANNALS of the American Academy of Political and Social Science1995 )

49Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

50Stoll (n 49) BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR 20 May 1999) 65

51 Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5 October 2013

52Stoll (n 49) 104

-MEMORANDUM for theRESPONDENT-

him to commit an unlawful act53 when in fact this duty could have been discharged through

legal and ethical means54

4 Moreover it is established that ldquonews broadcasting should be based on truthfulness

ensured by the appropriate means of verification and proof and impartiality in

presentation description and narrationrdquo55 Sang clearly did not follow these standards56

Having in mind that ldquoduties and responsibilities which accompany the exercise of the right

tofreedom of expression by media professionals assume special significance in situations

ofconflict and tensionrdquo57 it can be manifestly perceived that Rho had sent the voicemailonly

to let off some steam to his good friend Taur58 which proves prima faciethere was no such

situation prevailing and dissemination does not meet these standards

b) The impugned requirement does not cause a lsquoChilling effectrsquo

5 Ultimately the Respondent reiterates that there is no interference with the freedom

of the press59 Further the damages60 imposed upon Sang do not amount to a form of

censorship61 intended to discourage the press from expressing criticism62 Requirement to

53 Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt accessed 5 October 2013

54 Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013

55 Resolution 1003 (1993) on the ethics of journalism adopted by the Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

56 Compromis para13

57Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

58 Compromis para11

59Freedom of the Press lthttpwwwpuclorgfrom-archivesMediafreedom-presshtmgt accessed 9 October 210360 Compromis para 16

61 Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October 2013

62Stoll (n 49) 154

-MEMORANDUM for theRESPONDENT-

pay damages was merely to discourage journalist for adopting unlawful methods for

obtaining information63 protect right to privacy enshrined under Article 12 UDHR and

public order64 and is wholly proportionate in this instance The safeguard afforded by

freedom of speech in relation to journalistic reporting on issues of general interest is subject

to the journalistacting in good faith and in accordance with the ethics of journalism65

Regardless of the Applicantrsquos misguided beliefs and best intentions his profession is no

source of immunity or impunity66 the road to perdition is paved with bona-fide intentions

II The requirement does not restrict Article 17 UDHR

6 Sang had doubtlessly breached his lsquoduties and responsibilitiesrsquo67 the ethics of

journalism68 and did not act lsquoin good faithrsquo69Besides the information lsquodoes not bear on

matters of general importancersquo70 and its dissemination is an abuse of the pressrsquos ldquowatchdogrdquo

role71To enhance this contention reliance is placed upon three groundsFirst while earlier

63 Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-

codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

64 Public Order lthttpwwwusiporgguiding-principles-stabilization-and-reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October 2013

65Stoll (n 32) 103

66Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) International Court of Justice 14 February 2002

67The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

68BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20 May 1999)

69Pedersen (n 44)

70Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

71Warren(n 49)

-MEMORANDUM for theRESPONDENT-

decisions of the Strasbourg courts tend not to tolerate high damages awards72 none of them

involved the scale of character assassination like in this case73Second spousal abuse74 is a

serious allegation aimed at scandalising Rhorsquos reputation for negative publicity75 purposes

and third such an allegation does not contribute to public debate where there are no facts

substantiating the allegation76

7 Furthermore such an allegation is solely speculative and was coldly calculated to

inflict maximum damage to Rhorsquos reputation77 Rhorsquos loss must be seen in the context of

his negative publicity78 and its impact on his pecuniary loss arising from the protest79 In

addition to that the grief over loss of reputation and honour which was clearly compounded

by the tasteless spousal abuse allegations80 Rho has absolute right to ask for damages since

his right to privacy is in issue and since ldquothe possibility of taking an action under civil law

should be guaranteed to enable a victim to claim possible damages for invasion of

privacyrdquo81 Furthermore the damages are reasonable and does not violate right to enjoyment

of property of the Applicant

72Jersild v Denmark App no 159808 (ECHR 23 September 1994)

73Clarification 10

74Domestic Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt accessed 6 October 2013

75 What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October 2013

76 Compromis para12

77 Compromis para13

78 Clarification 10

79 Compromis para9

80Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June 2007)

81 Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary Assembly of Council of Europe 26 July 1998 Article 14(i)

-MEMORANDUM for theRESPONDENT-

III In any event the requirement is permissible under Article 29(2) UDHR

a) The requirement is prescribed by law

8 Imposing damages on Sang for breach of the Wiretap Act82 is a justified interference

with his freedom of expression The interference in question is validly provided by law and

serves to protect an individualrsquos right to protection from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR

b) The requirement is in pursuance of legitimate aims

9 The ECtHR in Handyside v United Kingdom83 acknowledged that lsquostate authorities

are in principle in a better position than the international judge to give an opinion on the

exact content of these requirements as well as on the necessity of a restriction of a

penaltyrsquo84 Whether a restriction is necessary in the circumstances is therefore an inquiry

based on the facts and circumstances prevailing in the country concerned which the national

authorities are in a better position to undertake85 For the foregoing reasons the requirement

is in pursuance of legitimate aims

c) The restriction is necessary in a democratic society

10 The thrust of the Mhugan courtrsquos reasoning in imposing damages on Sang was

directed at his dissemination of lsquounlawfully obtained materialrsquo86 ie Rhorsquos recorded

82 Compromis para14

83 App no 549372( ECHR 7 December 1976)

84Handyside(n 28) at [48] The Sunday Times (n 8) Joint Dissenting Opinion of Judges Wiarda Cremona Thor Vilhjalmsson Ryssdal Ganshof van der Meersch Sir Gerald Fitzmaurice Bindschedler-Robert Liesh and Matscher

85Case of Klass and Others v Germany App no 502971(EHRR 6 September 1978)

86 Compromis para16

-MEMORANDUM for theRESPONDENT-

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 17: Oxford Respondent

HUMAN RIGHTS COMMITTEE

Referred to in

Aduayom Diasso and Dobou v Togo Communications Nos 4221990

4231990

and 4241990 UN Doc CCPRC51D4221990 4231990 and 4241990

(1996)

ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN

Doc CCPRC85D11802003 (2006) (UN Human Rights Committee)

ENGLISH CASES

Referred to

in

A v B and Anr[2002] EWCA Civ 337 (UK)

McKennitt v Ash [2007] 3 WLR 194

Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK)

D v L [2004] EMLR 1 (UK)

Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK)

Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK)

-MEMORANDUM for theRESPONDENT-

R v Broadcasting Standards Commission ex parte British Broadcasting

Corporation (Liberty intervening) [2000] 3 All ER 989 (UK)

R v Loveridge[2001] EWCA Crim 973 (UK)

INDIAN CASES

Referred to in

Zimbabwe

Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231

REGIONAL AND INTERNATIONAL INSTRUMENTS

African Charter on Human and Peoplesrsquo Rights (adopted 27 June

1981entered into force 21 October 1986) (1982) 21 ILM 58

American Convention on Human Rights (adopted 22 November

1969entered into force 18 July 1978)

European Convention on Human Rights (adopted 4 November 1950

entered into force 3 September 1953)

International Covenant on Civil and Political Rights (adopted 16

-MEMORANDUM for theRESPONDENT-

December 1966 entered into force 23 March 1976) 999 UNTS 171

Universal Declaration of Human Rights (adopted 10 December 1948

UNGA Res 217 A(III)

CONSTITUTION

The Constitution of United States of America 1788

The Constitution of Argentina 1853

The Constitution of Belgium 1831

The Constitution of Brazil 1988

The Constitution Act of Finland 2000

The Constitution of India 1950

STATUTES

MISCELLANEOUS

-MEMORANDUM for theRESPONDENT-

Resolution 1003 (1993) on the ethics of journalism adopted by the

Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

Case Concerning the Arrest Warrant of 11 April 2000 (Democratic

Republic of the Congo v Belgium) (Merits) International Court of Justice

14 February 2002

21

Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary

Assembly of Council of Europe 26 July 1998 Article 14(i)

25

STATEMENT OF RELEVANT FACTS

-MEMORANDUM for theRESPONDENT-

ECONOMIC SCENARIO IN MHUGAN

1 The respondent country Republic of Mhugan is a country which obtained

independence in 1959 and since then it has had a parliamentary form of government1 Its

economy has grown rapidly since the late twentieth century fueled by a combination of

information technology industries manufacturing and financial services2

SOCIAL STATUS OF RHO

2 BansitSangnont better known by his stage name Rho is a pop music singer-

songwriter in Mhugan3 Rho after his music video for his song ldquoPokeacutePokeacuterdquo in 2011 became

very successful and was known throughout the world In early 2013 rumors began to

surface that Rho has been physically andor emotionally abusive to his wife an allegation

that Rho has vehemently denied4

COMPANIES PROVIDING INFORMATION ON SEARCH QUERIES

3 Centiplex Corporation based in Mhugan is the leading Internet services company in

Mhugan5 It runs an Internet search engine More than 80 of all search queries in Mhugan

are conducted through Centiplex and the remaining being conducted through Google6

Dexian is a global information services company based in the United States7 Its core

business is collecting aggregating analyzing and disseminating information relating to

1 Compromis para 1

2 Ibid

3 Compromis para 2

4 Compromis para 3

5 Compromis para4

6 Ibid

7 Compromis para 5

-MEMORANDUM for theRESPONDENT-

individuals8 Dexian claims to have records for almost 500 million people although those

records vary widely in their scope completeness and correctness9 The particular methods

that Dexian uses to combine sources and build individual records are not publicly known

and Dexian claims such information to be a trade secret10

4 Centiplex is a Dexian client and both buys and sells data to Dexian11 Prior to the

2013 Search Privacy Act described below no law or regulation in Mhugan restricted a

search enginersquos ability to collect disclose or use information12

ALLEGATIONS IMPOSED ON THON SANG

5 Thon Sang maintains an active blog on the Centiplex platform in Mhugan13 The ad

revenue goes to the centiplex and is not shared with the bloggers themselves14Sang is

ldquocelebrity-obsessedrdquo and his news is dedicated to Mhuganian celebrities15Sang has blogged

about the rumors of Rho abusing his wife writing that ldquoif true people should boycott Rhorsquos

music in protestrdquo16 On May 1 2013 Sang posted a voicemail that Rho left for his friend

8 Ibid

9 Ibid

10 Ibid

11 Compromis para 6

12 Ibid

13 Compromis para 7

14 Ibid

15 Compromis para 8

16 Ibid

-MEMORANDUM for theRESPONDENT-

TaurAklamit17 In the voicemail someone identifying himself as ldquoBansitrdquo said that he was

ldquofurious with my wife for not being more obedientrdquo and that ldquoI need to give her a good

smacking to show her whorsquos in chargerdquo18 Sang wrote in his post that he got this recording

from someone who tried to get into Aklamitrsquos voicemail Sang also wrote ldquoso the rumors are

true Boycott Rho and donrsquot even think about dancing the PokeacutePokeacuterdquo 19

6 The next day Sang posted again to gain more popularity- ldquoMore evidence this time

from Rhorsquos web searches which include lsquohow to control your wifersquo and lsquowhipping

techniquesrsquordquo Sang was very anxious to acquire information regarding Rho and therefore he

purchased Rhorsquos profile from Dexian for 20000 MHD which is approximately 002 Euros

7 On May 4 Rho held a press conference with his wife at his side where he stated

that he left the recorded voicemail for his friend TaurAlkamit and he would never even

dream of striking his wife He called Sang and whoever had recorded the voicemail

ldquovicious unethical and unprofessional rumor mongersrdquo who were ldquocriminals who deserve

to be punishedrdquo while his wife was busy listening to him and did not utter a word at the

conference On May 5 Sang again posted a reply stating that he was disgruntled by Rhorsquos

explanations

8 Sang clarified that the source of the voicemail had explained to him how he or she

had come across the message20 The source had entered Aklamitrsquos number by mistake

Aklamit and the source apparently shared the same password because neither had ever 17 Compromis para 9

18 Ibid

19 Ibid

20 Compromis para13

-MEMORANDUM for theRESPONDENT-

changed it from the default password for the voicemail system ldquo123456rdquo Before the source

had realized the mistake heshe clicked on the first message and heard it21 Suspecting that

the ldquoBansitrdquo on the message was in fact Rho the source then realized that this mailbox was

not hishers The source downloaded the copy of the message and sent the copy to Sang but

asking him not to reveal hisher identity22

PROVISIONS OF WIRETAP ACT

9 Mhuganian law makes it illegal under the Wiretap Act to ldquointentionally intercept or

obtain unauthorized access to any telephone or electronic communications whether in

transit or in storage23rdquo The Wiretap Act further makes it illegal for ldquoany person to

disseminate the contents of a telephone or electronic communications that the person knows

to have been unlawfully intercepted or obtained under this Act24rdquo The Wiretap Act provides

for both civil and criminal penalties Among the civil penalties are statutory damages up to

1000000 MHD The portion of the Wiretap Act described here contains an exception for

anyone acting in an official government capacity25

The Wiretap Act defines ndash

a) ldquodirectly accessedrdquo to include both (1) a link that leads directly to the material and

(2) any link that from the surrounding context reasonably indicates that it will lead

21 Ibid

22 Ibid

23 Compromis para14

24 Ibid

25 Ibid

-MEMORANDUM for theRESPONDENT-

to the prohibited material and does in fact lead to such material regardless of how

many links it takes to reach the prohibited material26

b) A search engine can meet its obligations under such an order by de-indexing the

relevant web pages but such de-indexing is not required so long as the relevant web

pages do not appear on the first page of search results27

c) The order remains in force unless and until the court rules against the plaintiff on

the Wiretap Act claim (or an appellate court rules against the plaintiff on this claim)

or the case is otherwise dismissed If the plaintiff prevails on the claim and

continues to prevail through any appeals the order effectively becomes permanent28

d) The Act provides for both civil and criminal penalties for a violation of such a

search engine order with statutory damages of up to 10000 MHD per day of

violation for a negligent violation and up to 1000000 MHD per day for an

intentional violation Criminal penalties are only available for an intentional

violation29

10 On May 8 2013 Rho sued Sang under the Wiretap Act for knowingly disseminating

the contents of unlawfully obtained communications30 Rho immediately applied for a search

engine order under the Act against Centiplex which the court granted31 The court

26 Compromis para15

27 Ibid

28 Ibid

29 Ibid

30 Compromis para16

31 ibid

-MEMORANDUM for theRESPONDENT-

ultimately ruled that Sang had violated the Wiretap Act and awarded statutory damages to

Rho of 400000 MHD In so ruling the court found under Mhuganian law that while the

sourcersquos initial hearing of the voicemail message may have been accidental the subsequent

downloading of the message to hisher computer was intentional and unauthorized under the

Wiretap Act and that furthermore because Sang had recounted on his blog all of the

relevant facts about the circumstances under which the source had acquired the voicemail

message Sang had the knowledge required to be liable under the Act32

11 Centiplex was given the search engine order by the court for disseminating the

contents of the recorded voicemail under the wiretap act and centiplex immediately began to

comply with the order entered against it33 Centiplex made an appearance in Rhorsquos case

against Sang in order to challenge the validity of the search engine order but the court

upheld the order34

12 In the same lawsuit Rho also sued the unknown source of the recorded voicemail

message as a ldquoJohn Doe35rdquo Rho subpoenaed Sang for the identity of that person Sang filed

a motion with the court to quash the subpoena asserting a privilege to hide the identity of

his source36 The court denied the motion to quash as under Mhuganian law the court does

recognize a qualified privilege not to reveal sources but only to ldquoprofessional journalistsrdquo

32 ibid

33 Compromis para1617

34 Ibid

35 Compromis para18

36 Ibid

-MEMORANDUM for theRESPONDENT-

but Sang was not a professional journalist as he did not disseminate the information to the

public for the gain of livelihood as the revenue goes to the CentiplexHowever the court did

grant a stay of the subpoena

2013 SEARCH PRIVACY ACT

13 On May 15 2013 Mhugan enacted the Search Privacy Act which makes it unlawful

for a search engine to sell information about a personrsquos search queries without that personrsquos

consent37

a) For purposes of this Act a ldquosalerdquo is defined to be a ldquotransfer in exchange for

anything of valuerdquo

b) Information is considered to be information ldquoabout a personrsquos search queriesrdquo if

individual search queries are associated with ldquoany identifier including without

limitation a name address phone number email address government identification

number date of birth or IP addressrdquo

c) The Act does not apply to non-sale transfers of such information nor does it apply

to any subsequent transfers of the same information after an initial transfer by the

search engine whether or not those subsequent transfers are sales

d) The Act contains explicit exceptions for disclosures to law enforcement agencies

pursuant to a warrant subpoena or court order and disclosures incident to the

search enginersquos ordinary course of business

e) The Act provides for compensatory or statutory damages at the plaintiffrsquos election

as well as punitive damages for a ldquowillful violationrdquo

f) The Act is scheduled to become effective on May 1 201438

37 Compromis para19

38 ibid

-MEMORANDUM for theRESPONDENT-

14 On May 20 2013 Centiplex sued in Mhugan to have the Search Privacy Act

declared invalid under the laws and Constitution of Mhugan39 But the court held the search

privacy act to be valid40

15 All of the rulings described above were appealed to the Mhugan Supreme Court the

highest appellate court in Mhugan and the Mhugan Supreme Court dismissed all of the

appeals41

16 Sang and Centiplex have challenged all of the following in the Universal Court of

Human Rights42

a) the damages imposed on Sang for disseminating the recorded voicemail

b) the subpoena to Sang to disclose the source of the recorded voicemail

c) the order against Centiplex requiring that webpages that link to the recorded

voicemail including Sangrsquos blog posts never appear on the first page of search

results

d) the validity of the 2013 Search Privacy Act43

39 Compromis para 20

40 Ibid

41 Compromis para21

42 Compromis para 22

43 Ibid

-MEMORANDUM for theRESPONDENT-

17 No law domestic or international restricts either Sangrsquos or Centiplexrsquos standing to

bring these challenges44 Both Sangrsquos and Centiplexrsquos positions have been rejected on the

merits in the domestic courts of Mhugan and all appeals or other legal remedies within the

Mhuganian court system have been exhausted45

STATEMENT OF JURISDICTION

CASE CONCERNING RIGHTS AND OBLIGATIONS UNDER THE UDHR

SANG AND CENTIPLEX Applicants

v

44 Compromis para 23

45 Ibid

-MEMORANDUM for theRESPONDENT-

THE REPUBLIC OF MHUGAN Respondent

ldquoSang and Centiplex (the Applicants) and the Republic of Mhugan (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 Mhuganian means the

Universal Freedom of Expression Court has jurisdiction in this matterrdquo

IN THE UNIVERSAL FREEDOM OF EXPRESSION COURT

THE RESPONDENT MOST HUMBLY AND RESPECTFULLY SUBMITS TO THE

JURISDICTION OF THIS HONrsquoBLE COURT

QUESTIONSPRESENTED

THE FOLLOWING QUESTIONS HAVE BEEN PRESENTED BEFORE THE COURT

FOR ITS DETERMINATION

1 WHETHER THE DAMAGES IMPOSED ON THE APPLICANT ARE CONSISTENT

WITH THE PROVISIONS OF THE UDHR

-MEMORANDUM for theRESPONDENT-

2 WHETHER THE REQUIREMENT TO DISCLOSE THE SOURCE OF THE

RECORDED VOICEMAIL IS CONSISTENT WITH THE PROVISIONS OF THE

UDHR

3 WHETHER THE SECTION OF THE WIRETAP ACT THAT PROVIDES FOR A

SPECIAL PROVISIONAL REMEDY IS CONSISTENT WITH THE UDHR

4 WHETHER THE PROVISIONS OF THE 2013 SEARCH PRIVACY ACT ARE

CONSISTENT WITH THE UDHR

SUMMARYOF ARGUMENTS

A The courts finding imposed damages of 400000 MHD on the Applicant First the

requirement does not infringe the right to freedom of expression of the Applicant Herein

firstly Respondent submits that the impugned requirement does not restrict the right to

freedom of expression and secondly it does not cause a chilling effect Second property

rights under Article 17 are not infringed because the Applicant cannot enjoy his right by

violating ones right under Article 12 The allegation emphasised by the Applicant does not

contribute to public debate as there are no facts substantiating the allegation Third the

-MEMORANDUM for theRESPONDENT-

Respondent possess a reasonable expectation of privacy under Article 12 which has been

violated after the dissemination of the unauthorised information took place In any event the

restriction is permissible under Article 29(2) of the UDHR It is prescribedby law under the

Wiretap Act The situation in Mhugan shows that the Wiretap Act is clearly in pursuit of the

legitimate aims of serves to protect an individualrsquos right from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR The restriction is necessary in a

democratic society as it corresponds to a pressing social need and is proportionate to the

legitimate aims

B The requirement by the court has mandated the Applicant to disclose the identity of

the source of the voicemail and it does not contravene the rights to freedom of expression

enshrined in Article 19 of the UDHR Herein firstly Article 19 does not include the right to

anonymity secondly it does not cause a chilling effect and finally the requirement does

not constitute prior restraint

Further the requirement does notcontravene the right to privacy guaranteed under Article 12

of the UDHR because there is no actual subjective expectation of privacy which is

objectively reasonable Finally theright to remedy enshrined in Article 8 of the UDHR has

not been violated because the Respondent has a right to effective remedy which is possible

only when the Applicant will disclose the name of the source of the information that

infiltrated the voicemailIn any event these measures are valid limitations under Article

29(2) of the UDHR Theysatisfy the three-tiered test of legality legitimacy and necessity

C The requirement by the Court mandated Centiplex to remove the impugned

information from the first page of search result First it does not contravene the right to

expression enshrined in Article 19 of the UDHR Herein firstly the restriction doesnt

impose filtering or prior restraint secondly it does not create a Chilling effect Second the

-MEMORANDUM for theRESPONDENT-

right to privacy guaranteed under Article 12 is violated as it has a superseding effect on

Applicants right guaranteed under Article 19 In any event these measures are valid

limitations under Article 29(2) of the UDHR They satisfy the three-tier test of legality

legitimacy and necessity

D The requirement under the 2013 Search Privacy Act is consistent with the UDHR

First the requirement does not contravene right to privacy enshrined in Article 12 of the

UDHRItexemplifies how in certain circumstances the right to privacy outweighs the right

to freedom of expression Second it does not contravene Article 19 as it complies with the

three-tier test under Article 29(2) The restriction is prescribed by law as it is made under the

authority of the SPA It is pursuant to the legitimate aim of protection of rights of others as

the Respondent possesses a reasonable expectation of privacy Further the restriction is

necessary in ademocratic society as the dissemination does not warrant to a debate of

general interest

ARGUMENTS

A THE DAMAGES IMPOSED ON THE APPLICANT ARE JUST FAIR AND

CONSISTENT WITH THE PROVISIONS OF THE UDHR

1 The courts finding imposed damages of 400000 MHD46 on the Applicant

Respondent submits that this requirement is consistent with the right to freedom of speech

and expression under Article 19 [I] right to property under Article 17 [II] and valid under

46 Compromis para16

-MEMORANDUM for theRESPONDENT-

Article 29(2) [III] Moreover the dissemination was privacy intrusive under Article 12

UDHR [IV]

I The requirement is not a restriction on Article 19 UDHR

2 Article 19 guarantees ldquothe right to freedom of opinion and expression hellip without

interferencehellipthrough any mediardquo47 Respondent submits that the impugned requirement

does not restrict the right to freedom of expression [a] and does not cause a chilling effect

[b]

a) The requirement does not restrict the freedom of expression

3 Notwithstanding the pressrsquo vital ldquowatchdogrdquo role48 journalists cannot be released

from their duty to obey the ordinary law on the basis that Article 19 of the UDHR affords

them protection49 In Stoll v Switzerland the ECtHR held that there is no lsquowholly

unrestricted freedom of expression even with respect to press reporting of matters of serious

public concernrsquo50 The Respondent emphasises the Courtrsquos sentiment that journalistic

ethics51 play a considerably important role lsquogiven the influence wielded by the media in

contemporary societyrsquo52 It is no excuse to say that Sangrsquos duty as a journalist compelled

47 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19 See also International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

48 Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government Ethics(The ANNALS of the American Academy of Political and Social Science1995 )

49Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

50Stoll (n 49) BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR 20 May 1999) 65

51 Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5 October 2013

52Stoll (n 49) 104

-MEMORANDUM for theRESPONDENT-

him to commit an unlawful act53 when in fact this duty could have been discharged through

legal and ethical means54

4 Moreover it is established that ldquonews broadcasting should be based on truthfulness

ensured by the appropriate means of verification and proof and impartiality in

presentation description and narrationrdquo55 Sang clearly did not follow these standards56

Having in mind that ldquoduties and responsibilities which accompany the exercise of the right

tofreedom of expression by media professionals assume special significance in situations

ofconflict and tensionrdquo57 it can be manifestly perceived that Rho had sent the voicemailonly

to let off some steam to his good friend Taur58 which proves prima faciethere was no such

situation prevailing and dissemination does not meet these standards

b) The impugned requirement does not cause a lsquoChilling effectrsquo

5 Ultimately the Respondent reiterates that there is no interference with the freedom

of the press59 Further the damages60 imposed upon Sang do not amount to a form of

censorship61 intended to discourage the press from expressing criticism62 Requirement to

53 Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt accessed 5 October 2013

54 Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013

55 Resolution 1003 (1993) on the ethics of journalism adopted by the Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

56 Compromis para13

57Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

58 Compromis para11

59Freedom of the Press lthttpwwwpuclorgfrom-archivesMediafreedom-presshtmgt accessed 9 October 210360 Compromis para 16

61 Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October 2013

62Stoll (n 49) 154

-MEMORANDUM for theRESPONDENT-

pay damages was merely to discourage journalist for adopting unlawful methods for

obtaining information63 protect right to privacy enshrined under Article 12 UDHR and

public order64 and is wholly proportionate in this instance The safeguard afforded by

freedom of speech in relation to journalistic reporting on issues of general interest is subject

to the journalistacting in good faith and in accordance with the ethics of journalism65

Regardless of the Applicantrsquos misguided beliefs and best intentions his profession is no

source of immunity or impunity66 the road to perdition is paved with bona-fide intentions

II The requirement does not restrict Article 17 UDHR

6 Sang had doubtlessly breached his lsquoduties and responsibilitiesrsquo67 the ethics of

journalism68 and did not act lsquoin good faithrsquo69Besides the information lsquodoes not bear on

matters of general importancersquo70 and its dissemination is an abuse of the pressrsquos ldquowatchdogrdquo

role71To enhance this contention reliance is placed upon three groundsFirst while earlier

63 Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-

codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

64 Public Order lthttpwwwusiporgguiding-principles-stabilization-and-reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October 2013

65Stoll (n 32) 103

66Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) International Court of Justice 14 February 2002

67The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

68BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20 May 1999)

69Pedersen (n 44)

70Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

71Warren(n 49)

-MEMORANDUM for theRESPONDENT-

decisions of the Strasbourg courts tend not to tolerate high damages awards72 none of them

involved the scale of character assassination like in this case73Second spousal abuse74 is a

serious allegation aimed at scandalising Rhorsquos reputation for negative publicity75 purposes

and third such an allegation does not contribute to public debate where there are no facts

substantiating the allegation76

7 Furthermore such an allegation is solely speculative and was coldly calculated to

inflict maximum damage to Rhorsquos reputation77 Rhorsquos loss must be seen in the context of

his negative publicity78 and its impact on his pecuniary loss arising from the protest79 In

addition to that the grief over loss of reputation and honour which was clearly compounded

by the tasteless spousal abuse allegations80 Rho has absolute right to ask for damages since

his right to privacy is in issue and since ldquothe possibility of taking an action under civil law

should be guaranteed to enable a victim to claim possible damages for invasion of

privacyrdquo81 Furthermore the damages are reasonable and does not violate right to enjoyment

of property of the Applicant

72Jersild v Denmark App no 159808 (ECHR 23 September 1994)

73Clarification 10

74Domestic Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt accessed 6 October 2013

75 What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October 2013

76 Compromis para12

77 Compromis para13

78 Clarification 10

79 Compromis para9

80Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June 2007)

81 Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary Assembly of Council of Europe 26 July 1998 Article 14(i)

-MEMORANDUM for theRESPONDENT-

III In any event the requirement is permissible under Article 29(2) UDHR

a) The requirement is prescribed by law

8 Imposing damages on Sang for breach of the Wiretap Act82 is a justified interference

with his freedom of expression The interference in question is validly provided by law and

serves to protect an individualrsquos right to protection from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR

b) The requirement is in pursuance of legitimate aims

9 The ECtHR in Handyside v United Kingdom83 acknowledged that lsquostate authorities

are in principle in a better position than the international judge to give an opinion on the

exact content of these requirements as well as on the necessity of a restriction of a

penaltyrsquo84 Whether a restriction is necessary in the circumstances is therefore an inquiry

based on the facts and circumstances prevailing in the country concerned which the national

authorities are in a better position to undertake85 For the foregoing reasons the requirement

is in pursuance of legitimate aims

c) The restriction is necessary in a democratic society

10 The thrust of the Mhugan courtrsquos reasoning in imposing damages on Sang was

directed at his dissemination of lsquounlawfully obtained materialrsquo86 ie Rhorsquos recorded

82 Compromis para14

83 App no 549372( ECHR 7 December 1976)

84Handyside(n 28) at [48] The Sunday Times (n 8) Joint Dissenting Opinion of Judges Wiarda Cremona Thor Vilhjalmsson Ryssdal Ganshof van der Meersch Sir Gerald Fitzmaurice Bindschedler-Robert Liesh and Matscher

85Case of Klass and Others v Germany App no 502971(EHRR 6 September 1978)

86 Compromis para16

-MEMORANDUM for theRESPONDENT-

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 18: Oxford Respondent

R v Broadcasting Standards Commission ex parte British Broadcasting

Corporation (Liberty intervening) [2000] 3 All ER 989 (UK)

R v Loveridge[2001] EWCA Crim 973 (UK)

INDIAN CASES

Referred to in

Zimbabwe

Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231

REGIONAL AND INTERNATIONAL INSTRUMENTS

African Charter on Human and Peoplesrsquo Rights (adopted 27 June

1981entered into force 21 October 1986) (1982) 21 ILM 58

American Convention on Human Rights (adopted 22 November

1969entered into force 18 July 1978)

European Convention on Human Rights (adopted 4 November 1950

entered into force 3 September 1953)

International Covenant on Civil and Political Rights (adopted 16

-MEMORANDUM for theRESPONDENT-

December 1966 entered into force 23 March 1976) 999 UNTS 171

Universal Declaration of Human Rights (adopted 10 December 1948

UNGA Res 217 A(III)

CONSTITUTION

The Constitution of United States of America 1788

The Constitution of Argentina 1853

The Constitution of Belgium 1831

The Constitution of Brazil 1988

The Constitution Act of Finland 2000

The Constitution of India 1950

STATUTES

MISCELLANEOUS

-MEMORANDUM for theRESPONDENT-

Resolution 1003 (1993) on the ethics of journalism adopted by the

Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

Case Concerning the Arrest Warrant of 11 April 2000 (Democratic

Republic of the Congo v Belgium) (Merits) International Court of Justice

14 February 2002

21

Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary

Assembly of Council of Europe 26 July 1998 Article 14(i)

25

STATEMENT OF RELEVANT FACTS

-MEMORANDUM for theRESPONDENT-

ECONOMIC SCENARIO IN MHUGAN

1 The respondent country Republic of Mhugan is a country which obtained

independence in 1959 and since then it has had a parliamentary form of government1 Its

economy has grown rapidly since the late twentieth century fueled by a combination of

information technology industries manufacturing and financial services2

SOCIAL STATUS OF RHO

2 BansitSangnont better known by his stage name Rho is a pop music singer-

songwriter in Mhugan3 Rho after his music video for his song ldquoPokeacutePokeacuterdquo in 2011 became

very successful and was known throughout the world In early 2013 rumors began to

surface that Rho has been physically andor emotionally abusive to his wife an allegation

that Rho has vehemently denied4

COMPANIES PROVIDING INFORMATION ON SEARCH QUERIES

3 Centiplex Corporation based in Mhugan is the leading Internet services company in

Mhugan5 It runs an Internet search engine More than 80 of all search queries in Mhugan

are conducted through Centiplex and the remaining being conducted through Google6

Dexian is a global information services company based in the United States7 Its core

business is collecting aggregating analyzing and disseminating information relating to

1 Compromis para 1

2 Ibid

3 Compromis para 2

4 Compromis para 3

5 Compromis para4

6 Ibid

7 Compromis para 5

-MEMORANDUM for theRESPONDENT-

individuals8 Dexian claims to have records for almost 500 million people although those

records vary widely in their scope completeness and correctness9 The particular methods

that Dexian uses to combine sources and build individual records are not publicly known

and Dexian claims such information to be a trade secret10

4 Centiplex is a Dexian client and both buys and sells data to Dexian11 Prior to the

2013 Search Privacy Act described below no law or regulation in Mhugan restricted a

search enginersquos ability to collect disclose or use information12

ALLEGATIONS IMPOSED ON THON SANG

5 Thon Sang maintains an active blog on the Centiplex platform in Mhugan13 The ad

revenue goes to the centiplex and is not shared with the bloggers themselves14Sang is

ldquocelebrity-obsessedrdquo and his news is dedicated to Mhuganian celebrities15Sang has blogged

about the rumors of Rho abusing his wife writing that ldquoif true people should boycott Rhorsquos

music in protestrdquo16 On May 1 2013 Sang posted a voicemail that Rho left for his friend

8 Ibid

9 Ibid

10 Ibid

11 Compromis para 6

12 Ibid

13 Compromis para 7

14 Ibid

15 Compromis para 8

16 Ibid

-MEMORANDUM for theRESPONDENT-

TaurAklamit17 In the voicemail someone identifying himself as ldquoBansitrdquo said that he was

ldquofurious with my wife for not being more obedientrdquo and that ldquoI need to give her a good

smacking to show her whorsquos in chargerdquo18 Sang wrote in his post that he got this recording

from someone who tried to get into Aklamitrsquos voicemail Sang also wrote ldquoso the rumors are

true Boycott Rho and donrsquot even think about dancing the PokeacutePokeacuterdquo 19

6 The next day Sang posted again to gain more popularity- ldquoMore evidence this time

from Rhorsquos web searches which include lsquohow to control your wifersquo and lsquowhipping

techniquesrsquordquo Sang was very anxious to acquire information regarding Rho and therefore he

purchased Rhorsquos profile from Dexian for 20000 MHD which is approximately 002 Euros

7 On May 4 Rho held a press conference with his wife at his side where he stated

that he left the recorded voicemail for his friend TaurAlkamit and he would never even

dream of striking his wife He called Sang and whoever had recorded the voicemail

ldquovicious unethical and unprofessional rumor mongersrdquo who were ldquocriminals who deserve

to be punishedrdquo while his wife was busy listening to him and did not utter a word at the

conference On May 5 Sang again posted a reply stating that he was disgruntled by Rhorsquos

explanations

8 Sang clarified that the source of the voicemail had explained to him how he or she

had come across the message20 The source had entered Aklamitrsquos number by mistake

Aklamit and the source apparently shared the same password because neither had ever 17 Compromis para 9

18 Ibid

19 Ibid

20 Compromis para13

-MEMORANDUM for theRESPONDENT-

changed it from the default password for the voicemail system ldquo123456rdquo Before the source

had realized the mistake heshe clicked on the first message and heard it21 Suspecting that

the ldquoBansitrdquo on the message was in fact Rho the source then realized that this mailbox was

not hishers The source downloaded the copy of the message and sent the copy to Sang but

asking him not to reveal hisher identity22

PROVISIONS OF WIRETAP ACT

9 Mhuganian law makes it illegal under the Wiretap Act to ldquointentionally intercept or

obtain unauthorized access to any telephone or electronic communications whether in

transit or in storage23rdquo The Wiretap Act further makes it illegal for ldquoany person to

disseminate the contents of a telephone or electronic communications that the person knows

to have been unlawfully intercepted or obtained under this Act24rdquo The Wiretap Act provides

for both civil and criminal penalties Among the civil penalties are statutory damages up to

1000000 MHD The portion of the Wiretap Act described here contains an exception for

anyone acting in an official government capacity25

The Wiretap Act defines ndash

a) ldquodirectly accessedrdquo to include both (1) a link that leads directly to the material and

(2) any link that from the surrounding context reasonably indicates that it will lead

21 Ibid

22 Ibid

23 Compromis para14

24 Ibid

25 Ibid

-MEMORANDUM for theRESPONDENT-

to the prohibited material and does in fact lead to such material regardless of how

many links it takes to reach the prohibited material26

b) A search engine can meet its obligations under such an order by de-indexing the

relevant web pages but such de-indexing is not required so long as the relevant web

pages do not appear on the first page of search results27

c) The order remains in force unless and until the court rules against the plaintiff on

the Wiretap Act claim (or an appellate court rules against the plaintiff on this claim)

or the case is otherwise dismissed If the plaintiff prevails on the claim and

continues to prevail through any appeals the order effectively becomes permanent28

d) The Act provides for both civil and criminal penalties for a violation of such a

search engine order with statutory damages of up to 10000 MHD per day of

violation for a negligent violation and up to 1000000 MHD per day for an

intentional violation Criminal penalties are only available for an intentional

violation29

10 On May 8 2013 Rho sued Sang under the Wiretap Act for knowingly disseminating

the contents of unlawfully obtained communications30 Rho immediately applied for a search

engine order under the Act against Centiplex which the court granted31 The court

26 Compromis para15

27 Ibid

28 Ibid

29 Ibid

30 Compromis para16

31 ibid

-MEMORANDUM for theRESPONDENT-

ultimately ruled that Sang had violated the Wiretap Act and awarded statutory damages to

Rho of 400000 MHD In so ruling the court found under Mhuganian law that while the

sourcersquos initial hearing of the voicemail message may have been accidental the subsequent

downloading of the message to hisher computer was intentional and unauthorized under the

Wiretap Act and that furthermore because Sang had recounted on his blog all of the

relevant facts about the circumstances under which the source had acquired the voicemail

message Sang had the knowledge required to be liable under the Act32

11 Centiplex was given the search engine order by the court for disseminating the

contents of the recorded voicemail under the wiretap act and centiplex immediately began to

comply with the order entered against it33 Centiplex made an appearance in Rhorsquos case

against Sang in order to challenge the validity of the search engine order but the court

upheld the order34

12 In the same lawsuit Rho also sued the unknown source of the recorded voicemail

message as a ldquoJohn Doe35rdquo Rho subpoenaed Sang for the identity of that person Sang filed

a motion with the court to quash the subpoena asserting a privilege to hide the identity of

his source36 The court denied the motion to quash as under Mhuganian law the court does

recognize a qualified privilege not to reveal sources but only to ldquoprofessional journalistsrdquo

32 ibid

33 Compromis para1617

34 Ibid

35 Compromis para18

36 Ibid

-MEMORANDUM for theRESPONDENT-

but Sang was not a professional journalist as he did not disseminate the information to the

public for the gain of livelihood as the revenue goes to the CentiplexHowever the court did

grant a stay of the subpoena

2013 SEARCH PRIVACY ACT

13 On May 15 2013 Mhugan enacted the Search Privacy Act which makes it unlawful

for a search engine to sell information about a personrsquos search queries without that personrsquos

consent37

a) For purposes of this Act a ldquosalerdquo is defined to be a ldquotransfer in exchange for

anything of valuerdquo

b) Information is considered to be information ldquoabout a personrsquos search queriesrdquo if

individual search queries are associated with ldquoany identifier including without

limitation a name address phone number email address government identification

number date of birth or IP addressrdquo

c) The Act does not apply to non-sale transfers of such information nor does it apply

to any subsequent transfers of the same information after an initial transfer by the

search engine whether or not those subsequent transfers are sales

d) The Act contains explicit exceptions for disclosures to law enforcement agencies

pursuant to a warrant subpoena or court order and disclosures incident to the

search enginersquos ordinary course of business

e) The Act provides for compensatory or statutory damages at the plaintiffrsquos election

as well as punitive damages for a ldquowillful violationrdquo

f) The Act is scheduled to become effective on May 1 201438

37 Compromis para19

38 ibid

-MEMORANDUM for theRESPONDENT-

14 On May 20 2013 Centiplex sued in Mhugan to have the Search Privacy Act

declared invalid under the laws and Constitution of Mhugan39 But the court held the search

privacy act to be valid40

15 All of the rulings described above were appealed to the Mhugan Supreme Court the

highest appellate court in Mhugan and the Mhugan Supreme Court dismissed all of the

appeals41

16 Sang and Centiplex have challenged all of the following in the Universal Court of

Human Rights42

a) the damages imposed on Sang for disseminating the recorded voicemail

b) the subpoena to Sang to disclose the source of the recorded voicemail

c) the order against Centiplex requiring that webpages that link to the recorded

voicemail including Sangrsquos blog posts never appear on the first page of search

results

d) the validity of the 2013 Search Privacy Act43

39 Compromis para 20

40 Ibid

41 Compromis para21

42 Compromis para 22

43 Ibid

-MEMORANDUM for theRESPONDENT-

17 No law domestic or international restricts either Sangrsquos or Centiplexrsquos standing to

bring these challenges44 Both Sangrsquos and Centiplexrsquos positions have been rejected on the

merits in the domestic courts of Mhugan and all appeals or other legal remedies within the

Mhuganian court system have been exhausted45

STATEMENT OF JURISDICTION

CASE CONCERNING RIGHTS AND OBLIGATIONS UNDER THE UDHR

SANG AND CENTIPLEX Applicants

v

44 Compromis para 23

45 Ibid

-MEMORANDUM for theRESPONDENT-

THE REPUBLIC OF MHUGAN Respondent

ldquoSang and Centiplex (the Applicants) and the Republic of Mhugan (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 Mhuganian means the

Universal Freedom of Expression Court has jurisdiction in this matterrdquo

IN THE UNIVERSAL FREEDOM OF EXPRESSION COURT

THE RESPONDENT MOST HUMBLY AND RESPECTFULLY SUBMITS TO THE

JURISDICTION OF THIS HONrsquoBLE COURT

QUESTIONSPRESENTED

THE FOLLOWING QUESTIONS HAVE BEEN PRESENTED BEFORE THE COURT

FOR ITS DETERMINATION

1 WHETHER THE DAMAGES IMPOSED ON THE APPLICANT ARE CONSISTENT

WITH THE PROVISIONS OF THE UDHR

-MEMORANDUM for theRESPONDENT-

2 WHETHER THE REQUIREMENT TO DISCLOSE THE SOURCE OF THE

RECORDED VOICEMAIL IS CONSISTENT WITH THE PROVISIONS OF THE

UDHR

3 WHETHER THE SECTION OF THE WIRETAP ACT THAT PROVIDES FOR A

SPECIAL PROVISIONAL REMEDY IS CONSISTENT WITH THE UDHR

4 WHETHER THE PROVISIONS OF THE 2013 SEARCH PRIVACY ACT ARE

CONSISTENT WITH THE UDHR

SUMMARYOF ARGUMENTS

A The courts finding imposed damages of 400000 MHD on the Applicant First the

requirement does not infringe the right to freedom of expression of the Applicant Herein

firstly Respondent submits that the impugned requirement does not restrict the right to

freedom of expression and secondly it does not cause a chilling effect Second property

rights under Article 17 are not infringed because the Applicant cannot enjoy his right by

violating ones right under Article 12 The allegation emphasised by the Applicant does not

contribute to public debate as there are no facts substantiating the allegation Third the

-MEMORANDUM for theRESPONDENT-

Respondent possess a reasonable expectation of privacy under Article 12 which has been

violated after the dissemination of the unauthorised information took place In any event the

restriction is permissible under Article 29(2) of the UDHR It is prescribedby law under the

Wiretap Act The situation in Mhugan shows that the Wiretap Act is clearly in pursuit of the

legitimate aims of serves to protect an individualrsquos right from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR The restriction is necessary in a

democratic society as it corresponds to a pressing social need and is proportionate to the

legitimate aims

B The requirement by the court has mandated the Applicant to disclose the identity of

the source of the voicemail and it does not contravene the rights to freedom of expression

enshrined in Article 19 of the UDHR Herein firstly Article 19 does not include the right to

anonymity secondly it does not cause a chilling effect and finally the requirement does

not constitute prior restraint

Further the requirement does notcontravene the right to privacy guaranteed under Article 12

of the UDHR because there is no actual subjective expectation of privacy which is

objectively reasonable Finally theright to remedy enshrined in Article 8 of the UDHR has

not been violated because the Respondent has a right to effective remedy which is possible

only when the Applicant will disclose the name of the source of the information that

infiltrated the voicemailIn any event these measures are valid limitations under Article

29(2) of the UDHR Theysatisfy the three-tiered test of legality legitimacy and necessity

C The requirement by the Court mandated Centiplex to remove the impugned

information from the first page of search result First it does not contravene the right to

expression enshrined in Article 19 of the UDHR Herein firstly the restriction doesnt

impose filtering or prior restraint secondly it does not create a Chilling effect Second the

-MEMORANDUM for theRESPONDENT-

right to privacy guaranteed under Article 12 is violated as it has a superseding effect on

Applicants right guaranteed under Article 19 In any event these measures are valid

limitations under Article 29(2) of the UDHR They satisfy the three-tier test of legality

legitimacy and necessity

D The requirement under the 2013 Search Privacy Act is consistent with the UDHR

First the requirement does not contravene right to privacy enshrined in Article 12 of the

UDHRItexemplifies how in certain circumstances the right to privacy outweighs the right

to freedom of expression Second it does not contravene Article 19 as it complies with the

three-tier test under Article 29(2) The restriction is prescribed by law as it is made under the

authority of the SPA It is pursuant to the legitimate aim of protection of rights of others as

the Respondent possesses a reasonable expectation of privacy Further the restriction is

necessary in ademocratic society as the dissemination does not warrant to a debate of

general interest

ARGUMENTS

A THE DAMAGES IMPOSED ON THE APPLICANT ARE JUST FAIR AND

CONSISTENT WITH THE PROVISIONS OF THE UDHR

1 The courts finding imposed damages of 400000 MHD46 on the Applicant

Respondent submits that this requirement is consistent with the right to freedom of speech

and expression under Article 19 [I] right to property under Article 17 [II] and valid under

46 Compromis para16

-MEMORANDUM for theRESPONDENT-

Article 29(2) [III] Moreover the dissemination was privacy intrusive under Article 12

UDHR [IV]

I The requirement is not a restriction on Article 19 UDHR

2 Article 19 guarantees ldquothe right to freedom of opinion and expression hellip without

interferencehellipthrough any mediardquo47 Respondent submits that the impugned requirement

does not restrict the right to freedom of expression [a] and does not cause a chilling effect

[b]

a) The requirement does not restrict the freedom of expression

3 Notwithstanding the pressrsquo vital ldquowatchdogrdquo role48 journalists cannot be released

from their duty to obey the ordinary law on the basis that Article 19 of the UDHR affords

them protection49 In Stoll v Switzerland the ECtHR held that there is no lsquowholly

unrestricted freedom of expression even with respect to press reporting of matters of serious

public concernrsquo50 The Respondent emphasises the Courtrsquos sentiment that journalistic

ethics51 play a considerably important role lsquogiven the influence wielded by the media in

contemporary societyrsquo52 It is no excuse to say that Sangrsquos duty as a journalist compelled

47 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19 See also International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

48 Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government Ethics(The ANNALS of the American Academy of Political and Social Science1995 )

49Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

50Stoll (n 49) BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR 20 May 1999) 65

51 Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5 October 2013

52Stoll (n 49) 104

-MEMORANDUM for theRESPONDENT-

him to commit an unlawful act53 when in fact this duty could have been discharged through

legal and ethical means54

4 Moreover it is established that ldquonews broadcasting should be based on truthfulness

ensured by the appropriate means of verification and proof and impartiality in

presentation description and narrationrdquo55 Sang clearly did not follow these standards56

Having in mind that ldquoduties and responsibilities which accompany the exercise of the right

tofreedom of expression by media professionals assume special significance in situations

ofconflict and tensionrdquo57 it can be manifestly perceived that Rho had sent the voicemailonly

to let off some steam to his good friend Taur58 which proves prima faciethere was no such

situation prevailing and dissemination does not meet these standards

b) The impugned requirement does not cause a lsquoChilling effectrsquo

5 Ultimately the Respondent reiterates that there is no interference with the freedom

of the press59 Further the damages60 imposed upon Sang do not amount to a form of

censorship61 intended to discourage the press from expressing criticism62 Requirement to

53 Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt accessed 5 October 2013

54 Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013

55 Resolution 1003 (1993) on the ethics of journalism adopted by the Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

56 Compromis para13

57Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

58 Compromis para11

59Freedom of the Press lthttpwwwpuclorgfrom-archivesMediafreedom-presshtmgt accessed 9 October 210360 Compromis para 16

61 Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October 2013

62Stoll (n 49) 154

-MEMORANDUM for theRESPONDENT-

pay damages was merely to discourage journalist for adopting unlawful methods for

obtaining information63 protect right to privacy enshrined under Article 12 UDHR and

public order64 and is wholly proportionate in this instance The safeguard afforded by

freedom of speech in relation to journalistic reporting on issues of general interest is subject

to the journalistacting in good faith and in accordance with the ethics of journalism65

Regardless of the Applicantrsquos misguided beliefs and best intentions his profession is no

source of immunity or impunity66 the road to perdition is paved with bona-fide intentions

II The requirement does not restrict Article 17 UDHR

6 Sang had doubtlessly breached his lsquoduties and responsibilitiesrsquo67 the ethics of

journalism68 and did not act lsquoin good faithrsquo69Besides the information lsquodoes not bear on

matters of general importancersquo70 and its dissemination is an abuse of the pressrsquos ldquowatchdogrdquo

role71To enhance this contention reliance is placed upon three groundsFirst while earlier

63 Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-

codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

64 Public Order lthttpwwwusiporgguiding-principles-stabilization-and-reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October 2013

65Stoll (n 32) 103

66Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) International Court of Justice 14 February 2002

67The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

68BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20 May 1999)

69Pedersen (n 44)

70Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

71Warren(n 49)

-MEMORANDUM for theRESPONDENT-

decisions of the Strasbourg courts tend not to tolerate high damages awards72 none of them

involved the scale of character assassination like in this case73Second spousal abuse74 is a

serious allegation aimed at scandalising Rhorsquos reputation for negative publicity75 purposes

and third such an allegation does not contribute to public debate where there are no facts

substantiating the allegation76

7 Furthermore such an allegation is solely speculative and was coldly calculated to

inflict maximum damage to Rhorsquos reputation77 Rhorsquos loss must be seen in the context of

his negative publicity78 and its impact on his pecuniary loss arising from the protest79 In

addition to that the grief over loss of reputation and honour which was clearly compounded

by the tasteless spousal abuse allegations80 Rho has absolute right to ask for damages since

his right to privacy is in issue and since ldquothe possibility of taking an action under civil law

should be guaranteed to enable a victim to claim possible damages for invasion of

privacyrdquo81 Furthermore the damages are reasonable and does not violate right to enjoyment

of property of the Applicant

72Jersild v Denmark App no 159808 (ECHR 23 September 1994)

73Clarification 10

74Domestic Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt accessed 6 October 2013

75 What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October 2013

76 Compromis para12

77 Compromis para13

78 Clarification 10

79 Compromis para9

80Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June 2007)

81 Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary Assembly of Council of Europe 26 July 1998 Article 14(i)

-MEMORANDUM for theRESPONDENT-

III In any event the requirement is permissible under Article 29(2) UDHR

a) The requirement is prescribed by law

8 Imposing damages on Sang for breach of the Wiretap Act82 is a justified interference

with his freedom of expression The interference in question is validly provided by law and

serves to protect an individualrsquos right to protection from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR

b) The requirement is in pursuance of legitimate aims

9 The ECtHR in Handyside v United Kingdom83 acknowledged that lsquostate authorities

are in principle in a better position than the international judge to give an opinion on the

exact content of these requirements as well as on the necessity of a restriction of a

penaltyrsquo84 Whether a restriction is necessary in the circumstances is therefore an inquiry

based on the facts and circumstances prevailing in the country concerned which the national

authorities are in a better position to undertake85 For the foregoing reasons the requirement

is in pursuance of legitimate aims

c) The restriction is necessary in a democratic society

10 The thrust of the Mhugan courtrsquos reasoning in imposing damages on Sang was

directed at his dissemination of lsquounlawfully obtained materialrsquo86 ie Rhorsquos recorded

82 Compromis para14

83 App no 549372( ECHR 7 December 1976)

84Handyside(n 28) at [48] The Sunday Times (n 8) Joint Dissenting Opinion of Judges Wiarda Cremona Thor Vilhjalmsson Ryssdal Ganshof van der Meersch Sir Gerald Fitzmaurice Bindschedler-Robert Liesh and Matscher

85Case of Klass and Others v Germany App no 502971(EHRR 6 September 1978)

86 Compromis para16

-MEMORANDUM for theRESPONDENT-

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 19: Oxford Respondent

December 1966 entered into force 23 March 1976) 999 UNTS 171

Universal Declaration of Human Rights (adopted 10 December 1948

UNGA Res 217 A(III)

CONSTITUTION

The Constitution of United States of America 1788

The Constitution of Argentina 1853

The Constitution of Belgium 1831

The Constitution of Brazil 1988

The Constitution Act of Finland 2000

The Constitution of India 1950

STATUTES

MISCELLANEOUS

-MEMORANDUM for theRESPONDENT-

Resolution 1003 (1993) on the ethics of journalism adopted by the

Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

Case Concerning the Arrest Warrant of 11 April 2000 (Democratic

Republic of the Congo v Belgium) (Merits) International Court of Justice

14 February 2002

21

Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary

Assembly of Council of Europe 26 July 1998 Article 14(i)

25

STATEMENT OF RELEVANT FACTS

-MEMORANDUM for theRESPONDENT-

ECONOMIC SCENARIO IN MHUGAN

1 The respondent country Republic of Mhugan is a country which obtained

independence in 1959 and since then it has had a parliamentary form of government1 Its

economy has grown rapidly since the late twentieth century fueled by a combination of

information technology industries manufacturing and financial services2

SOCIAL STATUS OF RHO

2 BansitSangnont better known by his stage name Rho is a pop music singer-

songwriter in Mhugan3 Rho after his music video for his song ldquoPokeacutePokeacuterdquo in 2011 became

very successful and was known throughout the world In early 2013 rumors began to

surface that Rho has been physically andor emotionally abusive to his wife an allegation

that Rho has vehemently denied4

COMPANIES PROVIDING INFORMATION ON SEARCH QUERIES

3 Centiplex Corporation based in Mhugan is the leading Internet services company in

Mhugan5 It runs an Internet search engine More than 80 of all search queries in Mhugan

are conducted through Centiplex and the remaining being conducted through Google6

Dexian is a global information services company based in the United States7 Its core

business is collecting aggregating analyzing and disseminating information relating to

1 Compromis para 1

2 Ibid

3 Compromis para 2

4 Compromis para 3

5 Compromis para4

6 Ibid

7 Compromis para 5

-MEMORANDUM for theRESPONDENT-

individuals8 Dexian claims to have records for almost 500 million people although those

records vary widely in their scope completeness and correctness9 The particular methods

that Dexian uses to combine sources and build individual records are not publicly known

and Dexian claims such information to be a trade secret10

4 Centiplex is a Dexian client and both buys and sells data to Dexian11 Prior to the

2013 Search Privacy Act described below no law or regulation in Mhugan restricted a

search enginersquos ability to collect disclose or use information12

ALLEGATIONS IMPOSED ON THON SANG

5 Thon Sang maintains an active blog on the Centiplex platform in Mhugan13 The ad

revenue goes to the centiplex and is not shared with the bloggers themselves14Sang is

ldquocelebrity-obsessedrdquo and his news is dedicated to Mhuganian celebrities15Sang has blogged

about the rumors of Rho abusing his wife writing that ldquoif true people should boycott Rhorsquos

music in protestrdquo16 On May 1 2013 Sang posted a voicemail that Rho left for his friend

8 Ibid

9 Ibid

10 Ibid

11 Compromis para 6

12 Ibid

13 Compromis para 7

14 Ibid

15 Compromis para 8

16 Ibid

-MEMORANDUM for theRESPONDENT-

TaurAklamit17 In the voicemail someone identifying himself as ldquoBansitrdquo said that he was

ldquofurious with my wife for not being more obedientrdquo and that ldquoI need to give her a good

smacking to show her whorsquos in chargerdquo18 Sang wrote in his post that he got this recording

from someone who tried to get into Aklamitrsquos voicemail Sang also wrote ldquoso the rumors are

true Boycott Rho and donrsquot even think about dancing the PokeacutePokeacuterdquo 19

6 The next day Sang posted again to gain more popularity- ldquoMore evidence this time

from Rhorsquos web searches which include lsquohow to control your wifersquo and lsquowhipping

techniquesrsquordquo Sang was very anxious to acquire information regarding Rho and therefore he

purchased Rhorsquos profile from Dexian for 20000 MHD which is approximately 002 Euros

7 On May 4 Rho held a press conference with his wife at his side where he stated

that he left the recorded voicemail for his friend TaurAlkamit and he would never even

dream of striking his wife He called Sang and whoever had recorded the voicemail

ldquovicious unethical and unprofessional rumor mongersrdquo who were ldquocriminals who deserve

to be punishedrdquo while his wife was busy listening to him and did not utter a word at the

conference On May 5 Sang again posted a reply stating that he was disgruntled by Rhorsquos

explanations

8 Sang clarified that the source of the voicemail had explained to him how he or she

had come across the message20 The source had entered Aklamitrsquos number by mistake

Aklamit and the source apparently shared the same password because neither had ever 17 Compromis para 9

18 Ibid

19 Ibid

20 Compromis para13

-MEMORANDUM for theRESPONDENT-

changed it from the default password for the voicemail system ldquo123456rdquo Before the source

had realized the mistake heshe clicked on the first message and heard it21 Suspecting that

the ldquoBansitrdquo on the message was in fact Rho the source then realized that this mailbox was

not hishers The source downloaded the copy of the message and sent the copy to Sang but

asking him not to reveal hisher identity22

PROVISIONS OF WIRETAP ACT

9 Mhuganian law makes it illegal under the Wiretap Act to ldquointentionally intercept or

obtain unauthorized access to any telephone or electronic communications whether in

transit or in storage23rdquo The Wiretap Act further makes it illegal for ldquoany person to

disseminate the contents of a telephone or electronic communications that the person knows

to have been unlawfully intercepted or obtained under this Act24rdquo The Wiretap Act provides

for both civil and criminal penalties Among the civil penalties are statutory damages up to

1000000 MHD The portion of the Wiretap Act described here contains an exception for

anyone acting in an official government capacity25

The Wiretap Act defines ndash

a) ldquodirectly accessedrdquo to include both (1) a link that leads directly to the material and

(2) any link that from the surrounding context reasonably indicates that it will lead

21 Ibid

22 Ibid

23 Compromis para14

24 Ibid

25 Ibid

-MEMORANDUM for theRESPONDENT-

to the prohibited material and does in fact lead to such material regardless of how

many links it takes to reach the prohibited material26

b) A search engine can meet its obligations under such an order by de-indexing the

relevant web pages but such de-indexing is not required so long as the relevant web

pages do not appear on the first page of search results27

c) The order remains in force unless and until the court rules against the plaintiff on

the Wiretap Act claim (or an appellate court rules against the plaintiff on this claim)

or the case is otherwise dismissed If the plaintiff prevails on the claim and

continues to prevail through any appeals the order effectively becomes permanent28

d) The Act provides for both civil and criminal penalties for a violation of such a

search engine order with statutory damages of up to 10000 MHD per day of

violation for a negligent violation and up to 1000000 MHD per day for an

intentional violation Criminal penalties are only available for an intentional

violation29

10 On May 8 2013 Rho sued Sang under the Wiretap Act for knowingly disseminating

the contents of unlawfully obtained communications30 Rho immediately applied for a search

engine order under the Act against Centiplex which the court granted31 The court

26 Compromis para15

27 Ibid

28 Ibid

29 Ibid

30 Compromis para16

31 ibid

-MEMORANDUM for theRESPONDENT-

ultimately ruled that Sang had violated the Wiretap Act and awarded statutory damages to

Rho of 400000 MHD In so ruling the court found under Mhuganian law that while the

sourcersquos initial hearing of the voicemail message may have been accidental the subsequent

downloading of the message to hisher computer was intentional and unauthorized under the

Wiretap Act and that furthermore because Sang had recounted on his blog all of the

relevant facts about the circumstances under which the source had acquired the voicemail

message Sang had the knowledge required to be liable under the Act32

11 Centiplex was given the search engine order by the court for disseminating the

contents of the recorded voicemail under the wiretap act and centiplex immediately began to

comply with the order entered against it33 Centiplex made an appearance in Rhorsquos case

against Sang in order to challenge the validity of the search engine order but the court

upheld the order34

12 In the same lawsuit Rho also sued the unknown source of the recorded voicemail

message as a ldquoJohn Doe35rdquo Rho subpoenaed Sang for the identity of that person Sang filed

a motion with the court to quash the subpoena asserting a privilege to hide the identity of

his source36 The court denied the motion to quash as under Mhuganian law the court does

recognize a qualified privilege not to reveal sources but only to ldquoprofessional journalistsrdquo

32 ibid

33 Compromis para1617

34 Ibid

35 Compromis para18

36 Ibid

-MEMORANDUM for theRESPONDENT-

but Sang was not a professional journalist as he did not disseminate the information to the

public for the gain of livelihood as the revenue goes to the CentiplexHowever the court did

grant a stay of the subpoena

2013 SEARCH PRIVACY ACT

13 On May 15 2013 Mhugan enacted the Search Privacy Act which makes it unlawful

for a search engine to sell information about a personrsquos search queries without that personrsquos

consent37

a) For purposes of this Act a ldquosalerdquo is defined to be a ldquotransfer in exchange for

anything of valuerdquo

b) Information is considered to be information ldquoabout a personrsquos search queriesrdquo if

individual search queries are associated with ldquoany identifier including without

limitation a name address phone number email address government identification

number date of birth or IP addressrdquo

c) The Act does not apply to non-sale transfers of such information nor does it apply

to any subsequent transfers of the same information after an initial transfer by the

search engine whether or not those subsequent transfers are sales

d) The Act contains explicit exceptions for disclosures to law enforcement agencies

pursuant to a warrant subpoena or court order and disclosures incident to the

search enginersquos ordinary course of business

e) The Act provides for compensatory or statutory damages at the plaintiffrsquos election

as well as punitive damages for a ldquowillful violationrdquo

f) The Act is scheduled to become effective on May 1 201438

37 Compromis para19

38 ibid

-MEMORANDUM for theRESPONDENT-

14 On May 20 2013 Centiplex sued in Mhugan to have the Search Privacy Act

declared invalid under the laws and Constitution of Mhugan39 But the court held the search

privacy act to be valid40

15 All of the rulings described above were appealed to the Mhugan Supreme Court the

highest appellate court in Mhugan and the Mhugan Supreme Court dismissed all of the

appeals41

16 Sang and Centiplex have challenged all of the following in the Universal Court of

Human Rights42

a) the damages imposed on Sang for disseminating the recorded voicemail

b) the subpoena to Sang to disclose the source of the recorded voicemail

c) the order against Centiplex requiring that webpages that link to the recorded

voicemail including Sangrsquos blog posts never appear on the first page of search

results

d) the validity of the 2013 Search Privacy Act43

39 Compromis para 20

40 Ibid

41 Compromis para21

42 Compromis para 22

43 Ibid

-MEMORANDUM for theRESPONDENT-

17 No law domestic or international restricts either Sangrsquos or Centiplexrsquos standing to

bring these challenges44 Both Sangrsquos and Centiplexrsquos positions have been rejected on the

merits in the domestic courts of Mhugan and all appeals or other legal remedies within the

Mhuganian court system have been exhausted45

STATEMENT OF JURISDICTION

CASE CONCERNING RIGHTS AND OBLIGATIONS UNDER THE UDHR

SANG AND CENTIPLEX Applicants

v

44 Compromis para 23

45 Ibid

-MEMORANDUM for theRESPONDENT-

THE REPUBLIC OF MHUGAN Respondent

ldquoSang and Centiplex (the Applicants) and the Republic of Mhugan (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 Mhuganian means the

Universal Freedom of Expression Court has jurisdiction in this matterrdquo

IN THE UNIVERSAL FREEDOM OF EXPRESSION COURT

THE RESPONDENT MOST HUMBLY AND RESPECTFULLY SUBMITS TO THE

JURISDICTION OF THIS HONrsquoBLE COURT

QUESTIONSPRESENTED

THE FOLLOWING QUESTIONS HAVE BEEN PRESENTED BEFORE THE COURT

FOR ITS DETERMINATION

1 WHETHER THE DAMAGES IMPOSED ON THE APPLICANT ARE CONSISTENT

WITH THE PROVISIONS OF THE UDHR

-MEMORANDUM for theRESPONDENT-

2 WHETHER THE REQUIREMENT TO DISCLOSE THE SOURCE OF THE

RECORDED VOICEMAIL IS CONSISTENT WITH THE PROVISIONS OF THE

UDHR

3 WHETHER THE SECTION OF THE WIRETAP ACT THAT PROVIDES FOR A

SPECIAL PROVISIONAL REMEDY IS CONSISTENT WITH THE UDHR

4 WHETHER THE PROVISIONS OF THE 2013 SEARCH PRIVACY ACT ARE

CONSISTENT WITH THE UDHR

SUMMARYOF ARGUMENTS

A The courts finding imposed damages of 400000 MHD on the Applicant First the

requirement does not infringe the right to freedom of expression of the Applicant Herein

firstly Respondent submits that the impugned requirement does not restrict the right to

freedom of expression and secondly it does not cause a chilling effect Second property

rights under Article 17 are not infringed because the Applicant cannot enjoy his right by

violating ones right under Article 12 The allegation emphasised by the Applicant does not

contribute to public debate as there are no facts substantiating the allegation Third the

-MEMORANDUM for theRESPONDENT-

Respondent possess a reasonable expectation of privacy under Article 12 which has been

violated after the dissemination of the unauthorised information took place In any event the

restriction is permissible under Article 29(2) of the UDHR It is prescribedby law under the

Wiretap Act The situation in Mhugan shows that the Wiretap Act is clearly in pursuit of the

legitimate aims of serves to protect an individualrsquos right from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR The restriction is necessary in a

democratic society as it corresponds to a pressing social need and is proportionate to the

legitimate aims

B The requirement by the court has mandated the Applicant to disclose the identity of

the source of the voicemail and it does not contravene the rights to freedom of expression

enshrined in Article 19 of the UDHR Herein firstly Article 19 does not include the right to

anonymity secondly it does not cause a chilling effect and finally the requirement does

not constitute prior restraint

Further the requirement does notcontravene the right to privacy guaranteed under Article 12

of the UDHR because there is no actual subjective expectation of privacy which is

objectively reasonable Finally theright to remedy enshrined in Article 8 of the UDHR has

not been violated because the Respondent has a right to effective remedy which is possible

only when the Applicant will disclose the name of the source of the information that

infiltrated the voicemailIn any event these measures are valid limitations under Article

29(2) of the UDHR Theysatisfy the three-tiered test of legality legitimacy and necessity

C The requirement by the Court mandated Centiplex to remove the impugned

information from the first page of search result First it does not contravene the right to

expression enshrined in Article 19 of the UDHR Herein firstly the restriction doesnt

impose filtering or prior restraint secondly it does not create a Chilling effect Second the

-MEMORANDUM for theRESPONDENT-

right to privacy guaranteed under Article 12 is violated as it has a superseding effect on

Applicants right guaranteed under Article 19 In any event these measures are valid

limitations under Article 29(2) of the UDHR They satisfy the three-tier test of legality

legitimacy and necessity

D The requirement under the 2013 Search Privacy Act is consistent with the UDHR

First the requirement does not contravene right to privacy enshrined in Article 12 of the

UDHRItexemplifies how in certain circumstances the right to privacy outweighs the right

to freedom of expression Second it does not contravene Article 19 as it complies with the

three-tier test under Article 29(2) The restriction is prescribed by law as it is made under the

authority of the SPA It is pursuant to the legitimate aim of protection of rights of others as

the Respondent possesses a reasonable expectation of privacy Further the restriction is

necessary in ademocratic society as the dissemination does not warrant to a debate of

general interest

ARGUMENTS

A THE DAMAGES IMPOSED ON THE APPLICANT ARE JUST FAIR AND

CONSISTENT WITH THE PROVISIONS OF THE UDHR

1 The courts finding imposed damages of 400000 MHD46 on the Applicant

Respondent submits that this requirement is consistent with the right to freedom of speech

and expression under Article 19 [I] right to property under Article 17 [II] and valid under

46 Compromis para16

-MEMORANDUM for theRESPONDENT-

Article 29(2) [III] Moreover the dissemination was privacy intrusive under Article 12

UDHR [IV]

I The requirement is not a restriction on Article 19 UDHR

2 Article 19 guarantees ldquothe right to freedom of opinion and expression hellip without

interferencehellipthrough any mediardquo47 Respondent submits that the impugned requirement

does not restrict the right to freedom of expression [a] and does not cause a chilling effect

[b]

a) The requirement does not restrict the freedom of expression

3 Notwithstanding the pressrsquo vital ldquowatchdogrdquo role48 journalists cannot be released

from their duty to obey the ordinary law on the basis that Article 19 of the UDHR affords

them protection49 In Stoll v Switzerland the ECtHR held that there is no lsquowholly

unrestricted freedom of expression even with respect to press reporting of matters of serious

public concernrsquo50 The Respondent emphasises the Courtrsquos sentiment that journalistic

ethics51 play a considerably important role lsquogiven the influence wielded by the media in

contemporary societyrsquo52 It is no excuse to say that Sangrsquos duty as a journalist compelled

47 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19 See also International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

48 Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government Ethics(The ANNALS of the American Academy of Political and Social Science1995 )

49Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

50Stoll (n 49) BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR 20 May 1999) 65

51 Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5 October 2013

52Stoll (n 49) 104

-MEMORANDUM for theRESPONDENT-

him to commit an unlawful act53 when in fact this duty could have been discharged through

legal and ethical means54

4 Moreover it is established that ldquonews broadcasting should be based on truthfulness

ensured by the appropriate means of verification and proof and impartiality in

presentation description and narrationrdquo55 Sang clearly did not follow these standards56

Having in mind that ldquoduties and responsibilities which accompany the exercise of the right

tofreedom of expression by media professionals assume special significance in situations

ofconflict and tensionrdquo57 it can be manifestly perceived that Rho had sent the voicemailonly

to let off some steam to his good friend Taur58 which proves prima faciethere was no such

situation prevailing and dissemination does not meet these standards

b) The impugned requirement does not cause a lsquoChilling effectrsquo

5 Ultimately the Respondent reiterates that there is no interference with the freedom

of the press59 Further the damages60 imposed upon Sang do not amount to a form of

censorship61 intended to discourage the press from expressing criticism62 Requirement to

53 Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt accessed 5 October 2013

54 Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013

55 Resolution 1003 (1993) on the ethics of journalism adopted by the Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

56 Compromis para13

57Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

58 Compromis para11

59Freedom of the Press lthttpwwwpuclorgfrom-archivesMediafreedom-presshtmgt accessed 9 October 210360 Compromis para 16

61 Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October 2013

62Stoll (n 49) 154

-MEMORANDUM for theRESPONDENT-

pay damages was merely to discourage journalist for adopting unlawful methods for

obtaining information63 protect right to privacy enshrined under Article 12 UDHR and

public order64 and is wholly proportionate in this instance The safeguard afforded by

freedom of speech in relation to journalistic reporting on issues of general interest is subject

to the journalistacting in good faith and in accordance with the ethics of journalism65

Regardless of the Applicantrsquos misguided beliefs and best intentions his profession is no

source of immunity or impunity66 the road to perdition is paved with bona-fide intentions

II The requirement does not restrict Article 17 UDHR

6 Sang had doubtlessly breached his lsquoduties and responsibilitiesrsquo67 the ethics of

journalism68 and did not act lsquoin good faithrsquo69Besides the information lsquodoes not bear on

matters of general importancersquo70 and its dissemination is an abuse of the pressrsquos ldquowatchdogrdquo

role71To enhance this contention reliance is placed upon three groundsFirst while earlier

63 Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-

codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

64 Public Order lthttpwwwusiporgguiding-principles-stabilization-and-reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October 2013

65Stoll (n 32) 103

66Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) International Court of Justice 14 February 2002

67The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

68BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20 May 1999)

69Pedersen (n 44)

70Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

71Warren(n 49)

-MEMORANDUM for theRESPONDENT-

decisions of the Strasbourg courts tend not to tolerate high damages awards72 none of them

involved the scale of character assassination like in this case73Second spousal abuse74 is a

serious allegation aimed at scandalising Rhorsquos reputation for negative publicity75 purposes

and third such an allegation does not contribute to public debate where there are no facts

substantiating the allegation76

7 Furthermore such an allegation is solely speculative and was coldly calculated to

inflict maximum damage to Rhorsquos reputation77 Rhorsquos loss must be seen in the context of

his negative publicity78 and its impact on his pecuniary loss arising from the protest79 In

addition to that the grief over loss of reputation and honour which was clearly compounded

by the tasteless spousal abuse allegations80 Rho has absolute right to ask for damages since

his right to privacy is in issue and since ldquothe possibility of taking an action under civil law

should be guaranteed to enable a victim to claim possible damages for invasion of

privacyrdquo81 Furthermore the damages are reasonable and does not violate right to enjoyment

of property of the Applicant

72Jersild v Denmark App no 159808 (ECHR 23 September 1994)

73Clarification 10

74Domestic Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt accessed 6 October 2013

75 What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October 2013

76 Compromis para12

77 Compromis para13

78 Clarification 10

79 Compromis para9

80Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June 2007)

81 Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary Assembly of Council of Europe 26 July 1998 Article 14(i)

-MEMORANDUM for theRESPONDENT-

III In any event the requirement is permissible under Article 29(2) UDHR

a) The requirement is prescribed by law

8 Imposing damages on Sang for breach of the Wiretap Act82 is a justified interference

with his freedom of expression The interference in question is validly provided by law and

serves to protect an individualrsquos right to protection from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR

b) The requirement is in pursuance of legitimate aims

9 The ECtHR in Handyside v United Kingdom83 acknowledged that lsquostate authorities

are in principle in a better position than the international judge to give an opinion on the

exact content of these requirements as well as on the necessity of a restriction of a

penaltyrsquo84 Whether a restriction is necessary in the circumstances is therefore an inquiry

based on the facts and circumstances prevailing in the country concerned which the national

authorities are in a better position to undertake85 For the foregoing reasons the requirement

is in pursuance of legitimate aims

c) The restriction is necessary in a democratic society

10 The thrust of the Mhugan courtrsquos reasoning in imposing damages on Sang was

directed at his dissemination of lsquounlawfully obtained materialrsquo86 ie Rhorsquos recorded

82 Compromis para14

83 App no 549372( ECHR 7 December 1976)

84Handyside(n 28) at [48] The Sunday Times (n 8) Joint Dissenting Opinion of Judges Wiarda Cremona Thor Vilhjalmsson Ryssdal Ganshof van der Meersch Sir Gerald Fitzmaurice Bindschedler-Robert Liesh and Matscher

85Case of Klass and Others v Germany App no 502971(EHRR 6 September 1978)

86 Compromis para16

-MEMORANDUM for theRESPONDENT-

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 20: Oxford Respondent

Resolution 1003 (1993) on the ethics of journalism adopted by the

Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

Case Concerning the Arrest Warrant of 11 April 2000 (Democratic

Republic of the Congo v Belgium) (Merits) International Court of Justice

14 February 2002

21

Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary

Assembly of Council of Europe 26 July 1998 Article 14(i)

25

STATEMENT OF RELEVANT FACTS

-MEMORANDUM for theRESPONDENT-

ECONOMIC SCENARIO IN MHUGAN

1 The respondent country Republic of Mhugan is a country which obtained

independence in 1959 and since then it has had a parliamentary form of government1 Its

economy has grown rapidly since the late twentieth century fueled by a combination of

information technology industries manufacturing and financial services2

SOCIAL STATUS OF RHO

2 BansitSangnont better known by his stage name Rho is a pop music singer-

songwriter in Mhugan3 Rho after his music video for his song ldquoPokeacutePokeacuterdquo in 2011 became

very successful and was known throughout the world In early 2013 rumors began to

surface that Rho has been physically andor emotionally abusive to his wife an allegation

that Rho has vehemently denied4

COMPANIES PROVIDING INFORMATION ON SEARCH QUERIES

3 Centiplex Corporation based in Mhugan is the leading Internet services company in

Mhugan5 It runs an Internet search engine More than 80 of all search queries in Mhugan

are conducted through Centiplex and the remaining being conducted through Google6

Dexian is a global information services company based in the United States7 Its core

business is collecting aggregating analyzing and disseminating information relating to

1 Compromis para 1

2 Ibid

3 Compromis para 2

4 Compromis para 3

5 Compromis para4

6 Ibid

7 Compromis para 5

-MEMORANDUM for theRESPONDENT-

individuals8 Dexian claims to have records for almost 500 million people although those

records vary widely in their scope completeness and correctness9 The particular methods

that Dexian uses to combine sources and build individual records are not publicly known

and Dexian claims such information to be a trade secret10

4 Centiplex is a Dexian client and both buys and sells data to Dexian11 Prior to the

2013 Search Privacy Act described below no law or regulation in Mhugan restricted a

search enginersquos ability to collect disclose or use information12

ALLEGATIONS IMPOSED ON THON SANG

5 Thon Sang maintains an active blog on the Centiplex platform in Mhugan13 The ad

revenue goes to the centiplex and is not shared with the bloggers themselves14Sang is

ldquocelebrity-obsessedrdquo and his news is dedicated to Mhuganian celebrities15Sang has blogged

about the rumors of Rho abusing his wife writing that ldquoif true people should boycott Rhorsquos

music in protestrdquo16 On May 1 2013 Sang posted a voicemail that Rho left for his friend

8 Ibid

9 Ibid

10 Ibid

11 Compromis para 6

12 Ibid

13 Compromis para 7

14 Ibid

15 Compromis para 8

16 Ibid

-MEMORANDUM for theRESPONDENT-

TaurAklamit17 In the voicemail someone identifying himself as ldquoBansitrdquo said that he was

ldquofurious with my wife for not being more obedientrdquo and that ldquoI need to give her a good

smacking to show her whorsquos in chargerdquo18 Sang wrote in his post that he got this recording

from someone who tried to get into Aklamitrsquos voicemail Sang also wrote ldquoso the rumors are

true Boycott Rho and donrsquot even think about dancing the PokeacutePokeacuterdquo 19

6 The next day Sang posted again to gain more popularity- ldquoMore evidence this time

from Rhorsquos web searches which include lsquohow to control your wifersquo and lsquowhipping

techniquesrsquordquo Sang was very anxious to acquire information regarding Rho and therefore he

purchased Rhorsquos profile from Dexian for 20000 MHD which is approximately 002 Euros

7 On May 4 Rho held a press conference with his wife at his side where he stated

that he left the recorded voicemail for his friend TaurAlkamit and he would never even

dream of striking his wife He called Sang and whoever had recorded the voicemail

ldquovicious unethical and unprofessional rumor mongersrdquo who were ldquocriminals who deserve

to be punishedrdquo while his wife was busy listening to him and did not utter a word at the

conference On May 5 Sang again posted a reply stating that he was disgruntled by Rhorsquos

explanations

8 Sang clarified that the source of the voicemail had explained to him how he or she

had come across the message20 The source had entered Aklamitrsquos number by mistake

Aklamit and the source apparently shared the same password because neither had ever 17 Compromis para 9

18 Ibid

19 Ibid

20 Compromis para13

-MEMORANDUM for theRESPONDENT-

changed it from the default password for the voicemail system ldquo123456rdquo Before the source

had realized the mistake heshe clicked on the first message and heard it21 Suspecting that

the ldquoBansitrdquo on the message was in fact Rho the source then realized that this mailbox was

not hishers The source downloaded the copy of the message and sent the copy to Sang but

asking him not to reveal hisher identity22

PROVISIONS OF WIRETAP ACT

9 Mhuganian law makes it illegal under the Wiretap Act to ldquointentionally intercept or

obtain unauthorized access to any telephone or electronic communications whether in

transit or in storage23rdquo The Wiretap Act further makes it illegal for ldquoany person to

disseminate the contents of a telephone or electronic communications that the person knows

to have been unlawfully intercepted or obtained under this Act24rdquo The Wiretap Act provides

for both civil and criminal penalties Among the civil penalties are statutory damages up to

1000000 MHD The portion of the Wiretap Act described here contains an exception for

anyone acting in an official government capacity25

The Wiretap Act defines ndash

a) ldquodirectly accessedrdquo to include both (1) a link that leads directly to the material and

(2) any link that from the surrounding context reasonably indicates that it will lead

21 Ibid

22 Ibid

23 Compromis para14

24 Ibid

25 Ibid

-MEMORANDUM for theRESPONDENT-

to the prohibited material and does in fact lead to such material regardless of how

many links it takes to reach the prohibited material26

b) A search engine can meet its obligations under such an order by de-indexing the

relevant web pages but such de-indexing is not required so long as the relevant web

pages do not appear on the first page of search results27

c) The order remains in force unless and until the court rules against the plaintiff on

the Wiretap Act claim (or an appellate court rules against the plaintiff on this claim)

or the case is otherwise dismissed If the plaintiff prevails on the claim and

continues to prevail through any appeals the order effectively becomes permanent28

d) The Act provides for both civil and criminal penalties for a violation of such a

search engine order with statutory damages of up to 10000 MHD per day of

violation for a negligent violation and up to 1000000 MHD per day for an

intentional violation Criminal penalties are only available for an intentional

violation29

10 On May 8 2013 Rho sued Sang under the Wiretap Act for knowingly disseminating

the contents of unlawfully obtained communications30 Rho immediately applied for a search

engine order under the Act against Centiplex which the court granted31 The court

26 Compromis para15

27 Ibid

28 Ibid

29 Ibid

30 Compromis para16

31 ibid

-MEMORANDUM for theRESPONDENT-

ultimately ruled that Sang had violated the Wiretap Act and awarded statutory damages to

Rho of 400000 MHD In so ruling the court found under Mhuganian law that while the

sourcersquos initial hearing of the voicemail message may have been accidental the subsequent

downloading of the message to hisher computer was intentional and unauthorized under the

Wiretap Act and that furthermore because Sang had recounted on his blog all of the

relevant facts about the circumstances under which the source had acquired the voicemail

message Sang had the knowledge required to be liable under the Act32

11 Centiplex was given the search engine order by the court for disseminating the

contents of the recorded voicemail under the wiretap act and centiplex immediately began to

comply with the order entered against it33 Centiplex made an appearance in Rhorsquos case

against Sang in order to challenge the validity of the search engine order but the court

upheld the order34

12 In the same lawsuit Rho also sued the unknown source of the recorded voicemail

message as a ldquoJohn Doe35rdquo Rho subpoenaed Sang for the identity of that person Sang filed

a motion with the court to quash the subpoena asserting a privilege to hide the identity of

his source36 The court denied the motion to quash as under Mhuganian law the court does

recognize a qualified privilege not to reveal sources but only to ldquoprofessional journalistsrdquo

32 ibid

33 Compromis para1617

34 Ibid

35 Compromis para18

36 Ibid

-MEMORANDUM for theRESPONDENT-

but Sang was not a professional journalist as he did not disseminate the information to the

public for the gain of livelihood as the revenue goes to the CentiplexHowever the court did

grant a stay of the subpoena

2013 SEARCH PRIVACY ACT

13 On May 15 2013 Mhugan enacted the Search Privacy Act which makes it unlawful

for a search engine to sell information about a personrsquos search queries without that personrsquos

consent37

a) For purposes of this Act a ldquosalerdquo is defined to be a ldquotransfer in exchange for

anything of valuerdquo

b) Information is considered to be information ldquoabout a personrsquos search queriesrdquo if

individual search queries are associated with ldquoany identifier including without

limitation a name address phone number email address government identification

number date of birth or IP addressrdquo

c) The Act does not apply to non-sale transfers of such information nor does it apply

to any subsequent transfers of the same information after an initial transfer by the

search engine whether or not those subsequent transfers are sales

d) The Act contains explicit exceptions for disclosures to law enforcement agencies

pursuant to a warrant subpoena or court order and disclosures incident to the

search enginersquos ordinary course of business

e) The Act provides for compensatory or statutory damages at the plaintiffrsquos election

as well as punitive damages for a ldquowillful violationrdquo

f) The Act is scheduled to become effective on May 1 201438

37 Compromis para19

38 ibid

-MEMORANDUM for theRESPONDENT-

14 On May 20 2013 Centiplex sued in Mhugan to have the Search Privacy Act

declared invalid under the laws and Constitution of Mhugan39 But the court held the search

privacy act to be valid40

15 All of the rulings described above were appealed to the Mhugan Supreme Court the

highest appellate court in Mhugan and the Mhugan Supreme Court dismissed all of the

appeals41

16 Sang and Centiplex have challenged all of the following in the Universal Court of

Human Rights42

a) the damages imposed on Sang for disseminating the recorded voicemail

b) the subpoena to Sang to disclose the source of the recorded voicemail

c) the order against Centiplex requiring that webpages that link to the recorded

voicemail including Sangrsquos blog posts never appear on the first page of search

results

d) the validity of the 2013 Search Privacy Act43

39 Compromis para 20

40 Ibid

41 Compromis para21

42 Compromis para 22

43 Ibid

-MEMORANDUM for theRESPONDENT-

17 No law domestic or international restricts either Sangrsquos or Centiplexrsquos standing to

bring these challenges44 Both Sangrsquos and Centiplexrsquos positions have been rejected on the

merits in the domestic courts of Mhugan and all appeals or other legal remedies within the

Mhuganian court system have been exhausted45

STATEMENT OF JURISDICTION

CASE CONCERNING RIGHTS AND OBLIGATIONS UNDER THE UDHR

SANG AND CENTIPLEX Applicants

v

44 Compromis para 23

45 Ibid

-MEMORANDUM for theRESPONDENT-

THE REPUBLIC OF MHUGAN Respondent

ldquoSang and Centiplex (the Applicants) and the Republic of Mhugan (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 Mhuganian means the

Universal Freedom of Expression Court has jurisdiction in this matterrdquo

IN THE UNIVERSAL FREEDOM OF EXPRESSION COURT

THE RESPONDENT MOST HUMBLY AND RESPECTFULLY SUBMITS TO THE

JURISDICTION OF THIS HONrsquoBLE COURT

QUESTIONSPRESENTED

THE FOLLOWING QUESTIONS HAVE BEEN PRESENTED BEFORE THE COURT

FOR ITS DETERMINATION

1 WHETHER THE DAMAGES IMPOSED ON THE APPLICANT ARE CONSISTENT

WITH THE PROVISIONS OF THE UDHR

-MEMORANDUM for theRESPONDENT-

2 WHETHER THE REQUIREMENT TO DISCLOSE THE SOURCE OF THE

RECORDED VOICEMAIL IS CONSISTENT WITH THE PROVISIONS OF THE

UDHR

3 WHETHER THE SECTION OF THE WIRETAP ACT THAT PROVIDES FOR A

SPECIAL PROVISIONAL REMEDY IS CONSISTENT WITH THE UDHR

4 WHETHER THE PROVISIONS OF THE 2013 SEARCH PRIVACY ACT ARE

CONSISTENT WITH THE UDHR

SUMMARYOF ARGUMENTS

A The courts finding imposed damages of 400000 MHD on the Applicant First the

requirement does not infringe the right to freedom of expression of the Applicant Herein

firstly Respondent submits that the impugned requirement does not restrict the right to

freedom of expression and secondly it does not cause a chilling effect Second property

rights under Article 17 are not infringed because the Applicant cannot enjoy his right by

violating ones right under Article 12 The allegation emphasised by the Applicant does not

contribute to public debate as there are no facts substantiating the allegation Third the

-MEMORANDUM for theRESPONDENT-

Respondent possess a reasonable expectation of privacy under Article 12 which has been

violated after the dissemination of the unauthorised information took place In any event the

restriction is permissible under Article 29(2) of the UDHR It is prescribedby law under the

Wiretap Act The situation in Mhugan shows that the Wiretap Act is clearly in pursuit of the

legitimate aims of serves to protect an individualrsquos right from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR The restriction is necessary in a

democratic society as it corresponds to a pressing social need and is proportionate to the

legitimate aims

B The requirement by the court has mandated the Applicant to disclose the identity of

the source of the voicemail and it does not contravene the rights to freedom of expression

enshrined in Article 19 of the UDHR Herein firstly Article 19 does not include the right to

anonymity secondly it does not cause a chilling effect and finally the requirement does

not constitute prior restraint

Further the requirement does notcontravene the right to privacy guaranteed under Article 12

of the UDHR because there is no actual subjective expectation of privacy which is

objectively reasonable Finally theright to remedy enshrined in Article 8 of the UDHR has

not been violated because the Respondent has a right to effective remedy which is possible

only when the Applicant will disclose the name of the source of the information that

infiltrated the voicemailIn any event these measures are valid limitations under Article

29(2) of the UDHR Theysatisfy the three-tiered test of legality legitimacy and necessity

C The requirement by the Court mandated Centiplex to remove the impugned

information from the first page of search result First it does not contravene the right to

expression enshrined in Article 19 of the UDHR Herein firstly the restriction doesnt

impose filtering or prior restraint secondly it does not create a Chilling effect Second the

-MEMORANDUM for theRESPONDENT-

right to privacy guaranteed under Article 12 is violated as it has a superseding effect on

Applicants right guaranteed under Article 19 In any event these measures are valid

limitations under Article 29(2) of the UDHR They satisfy the three-tier test of legality

legitimacy and necessity

D The requirement under the 2013 Search Privacy Act is consistent with the UDHR

First the requirement does not contravene right to privacy enshrined in Article 12 of the

UDHRItexemplifies how in certain circumstances the right to privacy outweighs the right

to freedom of expression Second it does not contravene Article 19 as it complies with the

three-tier test under Article 29(2) The restriction is prescribed by law as it is made under the

authority of the SPA It is pursuant to the legitimate aim of protection of rights of others as

the Respondent possesses a reasonable expectation of privacy Further the restriction is

necessary in ademocratic society as the dissemination does not warrant to a debate of

general interest

ARGUMENTS

A THE DAMAGES IMPOSED ON THE APPLICANT ARE JUST FAIR AND

CONSISTENT WITH THE PROVISIONS OF THE UDHR

1 The courts finding imposed damages of 400000 MHD46 on the Applicant

Respondent submits that this requirement is consistent with the right to freedom of speech

and expression under Article 19 [I] right to property under Article 17 [II] and valid under

46 Compromis para16

-MEMORANDUM for theRESPONDENT-

Article 29(2) [III] Moreover the dissemination was privacy intrusive under Article 12

UDHR [IV]

I The requirement is not a restriction on Article 19 UDHR

2 Article 19 guarantees ldquothe right to freedom of opinion and expression hellip without

interferencehellipthrough any mediardquo47 Respondent submits that the impugned requirement

does not restrict the right to freedom of expression [a] and does not cause a chilling effect

[b]

a) The requirement does not restrict the freedom of expression

3 Notwithstanding the pressrsquo vital ldquowatchdogrdquo role48 journalists cannot be released

from their duty to obey the ordinary law on the basis that Article 19 of the UDHR affords

them protection49 In Stoll v Switzerland the ECtHR held that there is no lsquowholly

unrestricted freedom of expression even with respect to press reporting of matters of serious

public concernrsquo50 The Respondent emphasises the Courtrsquos sentiment that journalistic

ethics51 play a considerably important role lsquogiven the influence wielded by the media in

contemporary societyrsquo52 It is no excuse to say that Sangrsquos duty as a journalist compelled

47 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19 See also International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

48 Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government Ethics(The ANNALS of the American Academy of Political and Social Science1995 )

49Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

50Stoll (n 49) BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR 20 May 1999) 65

51 Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5 October 2013

52Stoll (n 49) 104

-MEMORANDUM for theRESPONDENT-

him to commit an unlawful act53 when in fact this duty could have been discharged through

legal and ethical means54

4 Moreover it is established that ldquonews broadcasting should be based on truthfulness

ensured by the appropriate means of verification and proof and impartiality in

presentation description and narrationrdquo55 Sang clearly did not follow these standards56

Having in mind that ldquoduties and responsibilities which accompany the exercise of the right

tofreedom of expression by media professionals assume special significance in situations

ofconflict and tensionrdquo57 it can be manifestly perceived that Rho had sent the voicemailonly

to let off some steam to his good friend Taur58 which proves prima faciethere was no such

situation prevailing and dissemination does not meet these standards

b) The impugned requirement does not cause a lsquoChilling effectrsquo

5 Ultimately the Respondent reiterates that there is no interference with the freedom

of the press59 Further the damages60 imposed upon Sang do not amount to a form of

censorship61 intended to discourage the press from expressing criticism62 Requirement to

53 Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt accessed 5 October 2013

54 Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013

55 Resolution 1003 (1993) on the ethics of journalism adopted by the Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

56 Compromis para13

57Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

58 Compromis para11

59Freedom of the Press lthttpwwwpuclorgfrom-archivesMediafreedom-presshtmgt accessed 9 October 210360 Compromis para 16

61 Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October 2013

62Stoll (n 49) 154

-MEMORANDUM for theRESPONDENT-

pay damages was merely to discourage journalist for adopting unlawful methods for

obtaining information63 protect right to privacy enshrined under Article 12 UDHR and

public order64 and is wholly proportionate in this instance The safeguard afforded by

freedom of speech in relation to journalistic reporting on issues of general interest is subject

to the journalistacting in good faith and in accordance with the ethics of journalism65

Regardless of the Applicantrsquos misguided beliefs and best intentions his profession is no

source of immunity or impunity66 the road to perdition is paved with bona-fide intentions

II The requirement does not restrict Article 17 UDHR

6 Sang had doubtlessly breached his lsquoduties and responsibilitiesrsquo67 the ethics of

journalism68 and did not act lsquoin good faithrsquo69Besides the information lsquodoes not bear on

matters of general importancersquo70 and its dissemination is an abuse of the pressrsquos ldquowatchdogrdquo

role71To enhance this contention reliance is placed upon three groundsFirst while earlier

63 Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-

codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

64 Public Order lthttpwwwusiporgguiding-principles-stabilization-and-reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October 2013

65Stoll (n 32) 103

66Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) International Court of Justice 14 February 2002

67The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

68BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20 May 1999)

69Pedersen (n 44)

70Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

71Warren(n 49)

-MEMORANDUM for theRESPONDENT-

decisions of the Strasbourg courts tend not to tolerate high damages awards72 none of them

involved the scale of character assassination like in this case73Second spousal abuse74 is a

serious allegation aimed at scandalising Rhorsquos reputation for negative publicity75 purposes

and third such an allegation does not contribute to public debate where there are no facts

substantiating the allegation76

7 Furthermore such an allegation is solely speculative and was coldly calculated to

inflict maximum damage to Rhorsquos reputation77 Rhorsquos loss must be seen in the context of

his negative publicity78 and its impact on his pecuniary loss arising from the protest79 In

addition to that the grief over loss of reputation and honour which was clearly compounded

by the tasteless spousal abuse allegations80 Rho has absolute right to ask for damages since

his right to privacy is in issue and since ldquothe possibility of taking an action under civil law

should be guaranteed to enable a victim to claim possible damages for invasion of

privacyrdquo81 Furthermore the damages are reasonable and does not violate right to enjoyment

of property of the Applicant

72Jersild v Denmark App no 159808 (ECHR 23 September 1994)

73Clarification 10

74Domestic Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt accessed 6 October 2013

75 What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October 2013

76 Compromis para12

77 Compromis para13

78 Clarification 10

79 Compromis para9

80Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June 2007)

81 Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary Assembly of Council of Europe 26 July 1998 Article 14(i)

-MEMORANDUM for theRESPONDENT-

III In any event the requirement is permissible under Article 29(2) UDHR

a) The requirement is prescribed by law

8 Imposing damages on Sang for breach of the Wiretap Act82 is a justified interference

with his freedom of expression The interference in question is validly provided by law and

serves to protect an individualrsquos right to protection from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR

b) The requirement is in pursuance of legitimate aims

9 The ECtHR in Handyside v United Kingdom83 acknowledged that lsquostate authorities

are in principle in a better position than the international judge to give an opinion on the

exact content of these requirements as well as on the necessity of a restriction of a

penaltyrsquo84 Whether a restriction is necessary in the circumstances is therefore an inquiry

based on the facts and circumstances prevailing in the country concerned which the national

authorities are in a better position to undertake85 For the foregoing reasons the requirement

is in pursuance of legitimate aims

c) The restriction is necessary in a democratic society

10 The thrust of the Mhugan courtrsquos reasoning in imposing damages on Sang was

directed at his dissemination of lsquounlawfully obtained materialrsquo86 ie Rhorsquos recorded

82 Compromis para14

83 App no 549372( ECHR 7 December 1976)

84Handyside(n 28) at [48] The Sunday Times (n 8) Joint Dissenting Opinion of Judges Wiarda Cremona Thor Vilhjalmsson Ryssdal Ganshof van der Meersch Sir Gerald Fitzmaurice Bindschedler-Robert Liesh and Matscher

85Case of Klass and Others v Germany App no 502971(EHRR 6 September 1978)

86 Compromis para16

-MEMORANDUM for theRESPONDENT-

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 21: Oxford Respondent

ECONOMIC SCENARIO IN MHUGAN

1 The respondent country Republic of Mhugan is a country which obtained

independence in 1959 and since then it has had a parliamentary form of government1 Its

economy has grown rapidly since the late twentieth century fueled by a combination of

information technology industries manufacturing and financial services2

SOCIAL STATUS OF RHO

2 BansitSangnont better known by his stage name Rho is a pop music singer-

songwriter in Mhugan3 Rho after his music video for his song ldquoPokeacutePokeacuterdquo in 2011 became

very successful and was known throughout the world In early 2013 rumors began to

surface that Rho has been physically andor emotionally abusive to his wife an allegation

that Rho has vehemently denied4

COMPANIES PROVIDING INFORMATION ON SEARCH QUERIES

3 Centiplex Corporation based in Mhugan is the leading Internet services company in

Mhugan5 It runs an Internet search engine More than 80 of all search queries in Mhugan

are conducted through Centiplex and the remaining being conducted through Google6

Dexian is a global information services company based in the United States7 Its core

business is collecting aggregating analyzing and disseminating information relating to

1 Compromis para 1

2 Ibid

3 Compromis para 2

4 Compromis para 3

5 Compromis para4

6 Ibid

7 Compromis para 5

-MEMORANDUM for theRESPONDENT-

individuals8 Dexian claims to have records for almost 500 million people although those

records vary widely in their scope completeness and correctness9 The particular methods

that Dexian uses to combine sources and build individual records are not publicly known

and Dexian claims such information to be a trade secret10

4 Centiplex is a Dexian client and both buys and sells data to Dexian11 Prior to the

2013 Search Privacy Act described below no law or regulation in Mhugan restricted a

search enginersquos ability to collect disclose or use information12

ALLEGATIONS IMPOSED ON THON SANG

5 Thon Sang maintains an active blog on the Centiplex platform in Mhugan13 The ad

revenue goes to the centiplex and is not shared with the bloggers themselves14Sang is

ldquocelebrity-obsessedrdquo and his news is dedicated to Mhuganian celebrities15Sang has blogged

about the rumors of Rho abusing his wife writing that ldquoif true people should boycott Rhorsquos

music in protestrdquo16 On May 1 2013 Sang posted a voicemail that Rho left for his friend

8 Ibid

9 Ibid

10 Ibid

11 Compromis para 6

12 Ibid

13 Compromis para 7

14 Ibid

15 Compromis para 8

16 Ibid

-MEMORANDUM for theRESPONDENT-

TaurAklamit17 In the voicemail someone identifying himself as ldquoBansitrdquo said that he was

ldquofurious with my wife for not being more obedientrdquo and that ldquoI need to give her a good

smacking to show her whorsquos in chargerdquo18 Sang wrote in his post that he got this recording

from someone who tried to get into Aklamitrsquos voicemail Sang also wrote ldquoso the rumors are

true Boycott Rho and donrsquot even think about dancing the PokeacutePokeacuterdquo 19

6 The next day Sang posted again to gain more popularity- ldquoMore evidence this time

from Rhorsquos web searches which include lsquohow to control your wifersquo and lsquowhipping

techniquesrsquordquo Sang was very anxious to acquire information regarding Rho and therefore he

purchased Rhorsquos profile from Dexian for 20000 MHD which is approximately 002 Euros

7 On May 4 Rho held a press conference with his wife at his side where he stated

that he left the recorded voicemail for his friend TaurAlkamit and he would never even

dream of striking his wife He called Sang and whoever had recorded the voicemail

ldquovicious unethical and unprofessional rumor mongersrdquo who were ldquocriminals who deserve

to be punishedrdquo while his wife was busy listening to him and did not utter a word at the

conference On May 5 Sang again posted a reply stating that he was disgruntled by Rhorsquos

explanations

8 Sang clarified that the source of the voicemail had explained to him how he or she

had come across the message20 The source had entered Aklamitrsquos number by mistake

Aklamit and the source apparently shared the same password because neither had ever 17 Compromis para 9

18 Ibid

19 Ibid

20 Compromis para13

-MEMORANDUM for theRESPONDENT-

changed it from the default password for the voicemail system ldquo123456rdquo Before the source

had realized the mistake heshe clicked on the first message and heard it21 Suspecting that

the ldquoBansitrdquo on the message was in fact Rho the source then realized that this mailbox was

not hishers The source downloaded the copy of the message and sent the copy to Sang but

asking him not to reveal hisher identity22

PROVISIONS OF WIRETAP ACT

9 Mhuganian law makes it illegal under the Wiretap Act to ldquointentionally intercept or

obtain unauthorized access to any telephone or electronic communications whether in

transit or in storage23rdquo The Wiretap Act further makes it illegal for ldquoany person to

disseminate the contents of a telephone or electronic communications that the person knows

to have been unlawfully intercepted or obtained under this Act24rdquo The Wiretap Act provides

for both civil and criminal penalties Among the civil penalties are statutory damages up to

1000000 MHD The portion of the Wiretap Act described here contains an exception for

anyone acting in an official government capacity25

The Wiretap Act defines ndash

a) ldquodirectly accessedrdquo to include both (1) a link that leads directly to the material and

(2) any link that from the surrounding context reasonably indicates that it will lead

21 Ibid

22 Ibid

23 Compromis para14

24 Ibid

25 Ibid

-MEMORANDUM for theRESPONDENT-

to the prohibited material and does in fact lead to such material regardless of how

many links it takes to reach the prohibited material26

b) A search engine can meet its obligations under such an order by de-indexing the

relevant web pages but such de-indexing is not required so long as the relevant web

pages do not appear on the first page of search results27

c) The order remains in force unless and until the court rules against the plaintiff on

the Wiretap Act claim (or an appellate court rules against the plaintiff on this claim)

or the case is otherwise dismissed If the plaintiff prevails on the claim and

continues to prevail through any appeals the order effectively becomes permanent28

d) The Act provides for both civil and criminal penalties for a violation of such a

search engine order with statutory damages of up to 10000 MHD per day of

violation for a negligent violation and up to 1000000 MHD per day for an

intentional violation Criminal penalties are only available for an intentional

violation29

10 On May 8 2013 Rho sued Sang under the Wiretap Act for knowingly disseminating

the contents of unlawfully obtained communications30 Rho immediately applied for a search

engine order under the Act against Centiplex which the court granted31 The court

26 Compromis para15

27 Ibid

28 Ibid

29 Ibid

30 Compromis para16

31 ibid

-MEMORANDUM for theRESPONDENT-

ultimately ruled that Sang had violated the Wiretap Act and awarded statutory damages to

Rho of 400000 MHD In so ruling the court found under Mhuganian law that while the

sourcersquos initial hearing of the voicemail message may have been accidental the subsequent

downloading of the message to hisher computer was intentional and unauthorized under the

Wiretap Act and that furthermore because Sang had recounted on his blog all of the

relevant facts about the circumstances under which the source had acquired the voicemail

message Sang had the knowledge required to be liable under the Act32

11 Centiplex was given the search engine order by the court for disseminating the

contents of the recorded voicemail under the wiretap act and centiplex immediately began to

comply with the order entered against it33 Centiplex made an appearance in Rhorsquos case

against Sang in order to challenge the validity of the search engine order but the court

upheld the order34

12 In the same lawsuit Rho also sued the unknown source of the recorded voicemail

message as a ldquoJohn Doe35rdquo Rho subpoenaed Sang for the identity of that person Sang filed

a motion with the court to quash the subpoena asserting a privilege to hide the identity of

his source36 The court denied the motion to quash as under Mhuganian law the court does

recognize a qualified privilege not to reveal sources but only to ldquoprofessional journalistsrdquo

32 ibid

33 Compromis para1617

34 Ibid

35 Compromis para18

36 Ibid

-MEMORANDUM for theRESPONDENT-

but Sang was not a professional journalist as he did not disseminate the information to the

public for the gain of livelihood as the revenue goes to the CentiplexHowever the court did

grant a stay of the subpoena

2013 SEARCH PRIVACY ACT

13 On May 15 2013 Mhugan enacted the Search Privacy Act which makes it unlawful

for a search engine to sell information about a personrsquos search queries without that personrsquos

consent37

a) For purposes of this Act a ldquosalerdquo is defined to be a ldquotransfer in exchange for

anything of valuerdquo

b) Information is considered to be information ldquoabout a personrsquos search queriesrdquo if

individual search queries are associated with ldquoany identifier including without

limitation a name address phone number email address government identification

number date of birth or IP addressrdquo

c) The Act does not apply to non-sale transfers of such information nor does it apply

to any subsequent transfers of the same information after an initial transfer by the

search engine whether or not those subsequent transfers are sales

d) The Act contains explicit exceptions for disclosures to law enforcement agencies

pursuant to a warrant subpoena or court order and disclosures incident to the

search enginersquos ordinary course of business

e) The Act provides for compensatory or statutory damages at the plaintiffrsquos election

as well as punitive damages for a ldquowillful violationrdquo

f) The Act is scheduled to become effective on May 1 201438

37 Compromis para19

38 ibid

-MEMORANDUM for theRESPONDENT-

14 On May 20 2013 Centiplex sued in Mhugan to have the Search Privacy Act

declared invalid under the laws and Constitution of Mhugan39 But the court held the search

privacy act to be valid40

15 All of the rulings described above were appealed to the Mhugan Supreme Court the

highest appellate court in Mhugan and the Mhugan Supreme Court dismissed all of the

appeals41

16 Sang and Centiplex have challenged all of the following in the Universal Court of

Human Rights42

a) the damages imposed on Sang for disseminating the recorded voicemail

b) the subpoena to Sang to disclose the source of the recorded voicemail

c) the order against Centiplex requiring that webpages that link to the recorded

voicemail including Sangrsquos blog posts never appear on the first page of search

results

d) the validity of the 2013 Search Privacy Act43

39 Compromis para 20

40 Ibid

41 Compromis para21

42 Compromis para 22

43 Ibid

-MEMORANDUM for theRESPONDENT-

17 No law domestic or international restricts either Sangrsquos or Centiplexrsquos standing to

bring these challenges44 Both Sangrsquos and Centiplexrsquos positions have been rejected on the

merits in the domestic courts of Mhugan and all appeals or other legal remedies within the

Mhuganian court system have been exhausted45

STATEMENT OF JURISDICTION

CASE CONCERNING RIGHTS AND OBLIGATIONS UNDER THE UDHR

SANG AND CENTIPLEX Applicants

v

44 Compromis para 23

45 Ibid

-MEMORANDUM for theRESPONDENT-

THE REPUBLIC OF MHUGAN Respondent

ldquoSang and Centiplex (the Applicants) and the Republic of Mhugan (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 Mhuganian means the

Universal Freedom of Expression Court has jurisdiction in this matterrdquo

IN THE UNIVERSAL FREEDOM OF EXPRESSION COURT

THE RESPONDENT MOST HUMBLY AND RESPECTFULLY SUBMITS TO THE

JURISDICTION OF THIS HONrsquoBLE COURT

QUESTIONSPRESENTED

THE FOLLOWING QUESTIONS HAVE BEEN PRESENTED BEFORE THE COURT

FOR ITS DETERMINATION

1 WHETHER THE DAMAGES IMPOSED ON THE APPLICANT ARE CONSISTENT

WITH THE PROVISIONS OF THE UDHR

-MEMORANDUM for theRESPONDENT-

2 WHETHER THE REQUIREMENT TO DISCLOSE THE SOURCE OF THE

RECORDED VOICEMAIL IS CONSISTENT WITH THE PROVISIONS OF THE

UDHR

3 WHETHER THE SECTION OF THE WIRETAP ACT THAT PROVIDES FOR A

SPECIAL PROVISIONAL REMEDY IS CONSISTENT WITH THE UDHR

4 WHETHER THE PROVISIONS OF THE 2013 SEARCH PRIVACY ACT ARE

CONSISTENT WITH THE UDHR

SUMMARYOF ARGUMENTS

A The courts finding imposed damages of 400000 MHD on the Applicant First the

requirement does not infringe the right to freedom of expression of the Applicant Herein

firstly Respondent submits that the impugned requirement does not restrict the right to

freedom of expression and secondly it does not cause a chilling effect Second property

rights under Article 17 are not infringed because the Applicant cannot enjoy his right by

violating ones right under Article 12 The allegation emphasised by the Applicant does not

contribute to public debate as there are no facts substantiating the allegation Third the

-MEMORANDUM for theRESPONDENT-

Respondent possess a reasonable expectation of privacy under Article 12 which has been

violated after the dissemination of the unauthorised information took place In any event the

restriction is permissible under Article 29(2) of the UDHR It is prescribedby law under the

Wiretap Act The situation in Mhugan shows that the Wiretap Act is clearly in pursuit of the

legitimate aims of serves to protect an individualrsquos right from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR The restriction is necessary in a

democratic society as it corresponds to a pressing social need and is proportionate to the

legitimate aims

B The requirement by the court has mandated the Applicant to disclose the identity of

the source of the voicemail and it does not contravene the rights to freedom of expression

enshrined in Article 19 of the UDHR Herein firstly Article 19 does not include the right to

anonymity secondly it does not cause a chilling effect and finally the requirement does

not constitute prior restraint

Further the requirement does notcontravene the right to privacy guaranteed under Article 12

of the UDHR because there is no actual subjective expectation of privacy which is

objectively reasonable Finally theright to remedy enshrined in Article 8 of the UDHR has

not been violated because the Respondent has a right to effective remedy which is possible

only when the Applicant will disclose the name of the source of the information that

infiltrated the voicemailIn any event these measures are valid limitations under Article

29(2) of the UDHR Theysatisfy the three-tiered test of legality legitimacy and necessity

C The requirement by the Court mandated Centiplex to remove the impugned

information from the first page of search result First it does not contravene the right to

expression enshrined in Article 19 of the UDHR Herein firstly the restriction doesnt

impose filtering or prior restraint secondly it does not create a Chilling effect Second the

-MEMORANDUM for theRESPONDENT-

right to privacy guaranteed under Article 12 is violated as it has a superseding effect on

Applicants right guaranteed under Article 19 In any event these measures are valid

limitations under Article 29(2) of the UDHR They satisfy the three-tier test of legality

legitimacy and necessity

D The requirement under the 2013 Search Privacy Act is consistent with the UDHR

First the requirement does not contravene right to privacy enshrined in Article 12 of the

UDHRItexemplifies how in certain circumstances the right to privacy outweighs the right

to freedom of expression Second it does not contravene Article 19 as it complies with the

three-tier test under Article 29(2) The restriction is prescribed by law as it is made under the

authority of the SPA It is pursuant to the legitimate aim of protection of rights of others as

the Respondent possesses a reasonable expectation of privacy Further the restriction is

necessary in ademocratic society as the dissemination does not warrant to a debate of

general interest

ARGUMENTS

A THE DAMAGES IMPOSED ON THE APPLICANT ARE JUST FAIR AND

CONSISTENT WITH THE PROVISIONS OF THE UDHR

1 The courts finding imposed damages of 400000 MHD46 on the Applicant

Respondent submits that this requirement is consistent with the right to freedom of speech

and expression under Article 19 [I] right to property under Article 17 [II] and valid under

46 Compromis para16

-MEMORANDUM for theRESPONDENT-

Article 29(2) [III] Moreover the dissemination was privacy intrusive under Article 12

UDHR [IV]

I The requirement is not a restriction on Article 19 UDHR

2 Article 19 guarantees ldquothe right to freedom of opinion and expression hellip without

interferencehellipthrough any mediardquo47 Respondent submits that the impugned requirement

does not restrict the right to freedom of expression [a] and does not cause a chilling effect

[b]

a) The requirement does not restrict the freedom of expression

3 Notwithstanding the pressrsquo vital ldquowatchdogrdquo role48 journalists cannot be released

from their duty to obey the ordinary law on the basis that Article 19 of the UDHR affords

them protection49 In Stoll v Switzerland the ECtHR held that there is no lsquowholly

unrestricted freedom of expression even with respect to press reporting of matters of serious

public concernrsquo50 The Respondent emphasises the Courtrsquos sentiment that journalistic

ethics51 play a considerably important role lsquogiven the influence wielded by the media in

contemporary societyrsquo52 It is no excuse to say that Sangrsquos duty as a journalist compelled

47 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19 See also International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

48 Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government Ethics(The ANNALS of the American Academy of Political and Social Science1995 )

49Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

50Stoll (n 49) BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR 20 May 1999) 65

51 Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5 October 2013

52Stoll (n 49) 104

-MEMORANDUM for theRESPONDENT-

him to commit an unlawful act53 when in fact this duty could have been discharged through

legal and ethical means54

4 Moreover it is established that ldquonews broadcasting should be based on truthfulness

ensured by the appropriate means of verification and proof and impartiality in

presentation description and narrationrdquo55 Sang clearly did not follow these standards56

Having in mind that ldquoduties and responsibilities which accompany the exercise of the right

tofreedom of expression by media professionals assume special significance in situations

ofconflict and tensionrdquo57 it can be manifestly perceived that Rho had sent the voicemailonly

to let off some steam to his good friend Taur58 which proves prima faciethere was no such

situation prevailing and dissemination does not meet these standards

b) The impugned requirement does not cause a lsquoChilling effectrsquo

5 Ultimately the Respondent reiterates that there is no interference with the freedom

of the press59 Further the damages60 imposed upon Sang do not amount to a form of

censorship61 intended to discourage the press from expressing criticism62 Requirement to

53 Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt accessed 5 October 2013

54 Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013

55 Resolution 1003 (1993) on the ethics of journalism adopted by the Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

56 Compromis para13

57Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

58 Compromis para11

59Freedom of the Press lthttpwwwpuclorgfrom-archivesMediafreedom-presshtmgt accessed 9 October 210360 Compromis para 16

61 Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October 2013

62Stoll (n 49) 154

-MEMORANDUM for theRESPONDENT-

pay damages was merely to discourage journalist for adopting unlawful methods for

obtaining information63 protect right to privacy enshrined under Article 12 UDHR and

public order64 and is wholly proportionate in this instance The safeguard afforded by

freedom of speech in relation to journalistic reporting on issues of general interest is subject

to the journalistacting in good faith and in accordance with the ethics of journalism65

Regardless of the Applicantrsquos misguided beliefs and best intentions his profession is no

source of immunity or impunity66 the road to perdition is paved with bona-fide intentions

II The requirement does not restrict Article 17 UDHR

6 Sang had doubtlessly breached his lsquoduties and responsibilitiesrsquo67 the ethics of

journalism68 and did not act lsquoin good faithrsquo69Besides the information lsquodoes not bear on

matters of general importancersquo70 and its dissemination is an abuse of the pressrsquos ldquowatchdogrdquo

role71To enhance this contention reliance is placed upon three groundsFirst while earlier

63 Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-

codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

64 Public Order lthttpwwwusiporgguiding-principles-stabilization-and-reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October 2013

65Stoll (n 32) 103

66Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) International Court of Justice 14 February 2002

67The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

68BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20 May 1999)

69Pedersen (n 44)

70Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

71Warren(n 49)

-MEMORANDUM for theRESPONDENT-

decisions of the Strasbourg courts tend not to tolerate high damages awards72 none of them

involved the scale of character assassination like in this case73Second spousal abuse74 is a

serious allegation aimed at scandalising Rhorsquos reputation for negative publicity75 purposes

and third such an allegation does not contribute to public debate where there are no facts

substantiating the allegation76

7 Furthermore such an allegation is solely speculative and was coldly calculated to

inflict maximum damage to Rhorsquos reputation77 Rhorsquos loss must be seen in the context of

his negative publicity78 and its impact on his pecuniary loss arising from the protest79 In

addition to that the grief over loss of reputation and honour which was clearly compounded

by the tasteless spousal abuse allegations80 Rho has absolute right to ask for damages since

his right to privacy is in issue and since ldquothe possibility of taking an action under civil law

should be guaranteed to enable a victim to claim possible damages for invasion of

privacyrdquo81 Furthermore the damages are reasonable and does not violate right to enjoyment

of property of the Applicant

72Jersild v Denmark App no 159808 (ECHR 23 September 1994)

73Clarification 10

74Domestic Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt accessed 6 October 2013

75 What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October 2013

76 Compromis para12

77 Compromis para13

78 Clarification 10

79 Compromis para9

80Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June 2007)

81 Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary Assembly of Council of Europe 26 July 1998 Article 14(i)

-MEMORANDUM for theRESPONDENT-

III In any event the requirement is permissible under Article 29(2) UDHR

a) The requirement is prescribed by law

8 Imposing damages on Sang for breach of the Wiretap Act82 is a justified interference

with his freedom of expression The interference in question is validly provided by law and

serves to protect an individualrsquos right to protection from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR

b) The requirement is in pursuance of legitimate aims

9 The ECtHR in Handyside v United Kingdom83 acknowledged that lsquostate authorities

are in principle in a better position than the international judge to give an opinion on the

exact content of these requirements as well as on the necessity of a restriction of a

penaltyrsquo84 Whether a restriction is necessary in the circumstances is therefore an inquiry

based on the facts and circumstances prevailing in the country concerned which the national

authorities are in a better position to undertake85 For the foregoing reasons the requirement

is in pursuance of legitimate aims

c) The restriction is necessary in a democratic society

10 The thrust of the Mhugan courtrsquos reasoning in imposing damages on Sang was

directed at his dissemination of lsquounlawfully obtained materialrsquo86 ie Rhorsquos recorded

82 Compromis para14

83 App no 549372( ECHR 7 December 1976)

84Handyside(n 28) at [48] The Sunday Times (n 8) Joint Dissenting Opinion of Judges Wiarda Cremona Thor Vilhjalmsson Ryssdal Ganshof van der Meersch Sir Gerald Fitzmaurice Bindschedler-Robert Liesh and Matscher

85Case of Klass and Others v Germany App no 502971(EHRR 6 September 1978)

86 Compromis para16

-MEMORANDUM for theRESPONDENT-

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 22: Oxford Respondent

individuals8 Dexian claims to have records for almost 500 million people although those

records vary widely in their scope completeness and correctness9 The particular methods

that Dexian uses to combine sources and build individual records are not publicly known

and Dexian claims such information to be a trade secret10

4 Centiplex is a Dexian client and both buys and sells data to Dexian11 Prior to the

2013 Search Privacy Act described below no law or regulation in Mhugan restricted a

search enginersquos ability to collect disclose or use information12

ALLEGATIONS IMPOSED ON THON SANG

5 Thon Sang maintains an active blog on the Centiplex platform in Mhugan13 The ad

revenue goes to the centiplex and is not shared with the bloggers themselves14Sang is

ldquocelebrity-obsessedrdquo and his news is dedicated to Mhuganian celebrities15Sang has blogged

about the rumors of Rho abusing his wife writing that ldquoif true people should boycott Rhorsquos

music in protestrdquo16 On May 1 2013 Sang posted a voicemail that Rho left for his friend

8 Ibid

9 Ibid

10 Ibid

11 Compromis para 6

12 Ibid

13 Compromis para 7

14 Ibid

15 Compromis para 8

16 Ibid

-MEMORANDUM for theRESPONDENT-

TaurAklamit17 In the voicemail someone identifying himself as ldquoBansitrdquo said that he was

ldquofurious with my wife for not being more obedientrdquo and that ldquoI need to give her a good

smacking to show her whorsquos in chargerdquo18 Sang wrote in his post that he got this recording

from someone who tried to get into Aklamitrsquos voicemail Sang also wrote ldquoso the rumors are

true Boycott Rho and donrsquot even think about dancing the PokeacutePokeacuterdquo 19

6 The next day Sang posted again to gain more popularity- ldquoMore evidence this time

from Rhorsquos web searches which include lsquohow to control your wifersquo and lsquowhipping

techniquesrsquordquo Sang was very anxious to acquire information regarding Rho and therefore he

purchased Rhorsquos profile from Dexian for 20000 MHD which is approximately 002 Euros

7 On May 4 Rho held a press conference with his wife at his side where he stated

that he left the recorded voicemail for his friend TaurAlkamit and he would never even

dream of striking his wife He called Sang and whoever had recorded the voicemail

ldquovicious unethical and unprofessional rumor mongersrdquo who were ldquocriminals who deserve

to be punishedrdquo while his wife was busy listening to him and did not utter a word at the

conference On May 5 Sang again posted a reply stating that he was disgruntled by Rhorsquos

explanations

8 Sang clarified that the source of the voicemail had explained to him how he or she

had come across the message20 The source had entered Aklamitrsquos number by mistake

Aklamit and the source apparently shared the same password because neither had ever 17 Compromis para 9

18 Ibid

19 Ibid

20 Compromis para13

-MEMORANDUM for theRESPONDENT-

changed it from the default password for the voicemail system ldquo123456rdquo Before the source

had realized the mistake heshe clicked on the first message and heard it21 Suspecting that

the ldquoBansitrdquo on the message was in fact Rho the source then realized that this mailbox was

not hishers The source downloaded the copy of the message and sent the copy to Sang but

asking him not to reveal hisher identity22

PROVISIONS OF WIRETAP ACT

9 Mhuganian law makes it illegal under the Wiretap Act to ldquointentionally intercept or

obtain unauthorized access to any telephone or electronic communications whether in

transit or in storage23rdquo The Wiretap Act further makes it illegal for ldquoany person to

disseminate the contents of a telephone or electronic communications that the person knows

to have been unlawfully intercepted or obtained under this Act24rdquo The Wiretap Act provides

for both civil and criminal penalties Among the civil penalties are statutory damages up to

1000000 MHD The portion of the Wiretap Act described here contains an exception for

anyone acting in an official government capacity25

The Wiretap Act defines ndash

a) ldquodirectly accessedrdquo to include both (1) a link that leads directly to the material and

(2) any link that from the surrounding context reasonably indicates that it will lead

21 Ibid

22 Ibid

23 Compromis para14

24 Ibid

25 Ibid

-MEMORANDUM for theRESPONDENT-

to the prohibited material and does in fact lead to such material regardless of how

many links it takes to reach the prohibited material26

b) A search engine can meet its obligations under such an order by de-indexing the

relevant web pages but such de-indexing is not required so long as the relevant web

pages do not appear on the first page of search results27

c) The order remains in force unless and until the court rules against the plaintiff on

the Wiretap Act claim (or an appellate court rules against the plaintiff on this claim)

or the case is otherwise dismissed If the plaintiff prevails on the claim and

continues to prevail through any appeals the order effectively becomes permanent28

d) The Act provides for both civil and criminal penalties for a violation of such a

search engine order with statutory damages of up to 10000 MHD per day of

violation for a negligent violation and up to 1000000 MHD per day for an

intentional violation Criminal penalties are only available for an intentional

violation29

10 On May 8 2013 Rho sued Sang under the Wiretap Act for knowingly disseminating

the contents of unlawfully obtained communications30 Rho immediately applied for a search

engine order under the Act against Centiplex which the court granted31 The court

26 Compromis para15

27 Ibid

28 Ibid

29 Ibid

30 Compromis para16

31 ibid

-MEMORANDUM for theRESPONDENT-

ultimately ruled that Sang had violated the Wiretap Act and awarded statutory damages to

Rho of 400000 MHD In so ruling the court found under Mhuganian law that while the

sourcersquos initial hearing of the voicemail message may have been accidental the subsequent

downloading of the message to hisher computer was intentional and unauthorized under the

Wiretap Act and that furthermore because Sang had recounted on his blog all of the

relevant facts about the circumstances under which the source had acquired the voicemail

message Sang had the knowledge required to be liable under the Act32

11 Centiplex was given the search engine order by the court for disseminating the

contents of the recorded voicemail under the wiretap act and centiplex immediately began to

comply with the order entered against it33 Centiplex made an appearance in Rhorsquos case

against Sang in order to challenge the validity of the search engine order but the court

upheld the order34

12 In the same lawsuit Rho also sued the unknown source of the recorded voicemail

message as a ldquoJohn Doe35rdquo Rho subpoenaed Sang for the identity of that person Sang filed

a motion with the court to quash the subpoena asserting a privilege to hide the identity of

his source36 The court denied the motion to quash as under Mhuganian law the court does

recognize a qualified privilege not to reveal sources but only to ldquoprofessional journalistsrdquo

32 ibid

33 Compromis para1617

34 Ibid

35 Compromis para18

36 Ibid

-MEMORANDUM for theRESPONDENT-

but Sang was not a professional journalist as he did not disseminate the information to the

public for the gain of livelihood as the revenue goes to the CentiplexHowever the court did

grant a stay of the subpoena

2013 SEARCH PRIVACY ACT

13 On May 15 2013 Mhugan enacted the Search Privacy Act which makes it unlawful

for a search engine to sell information about a personrsquos search queries without that personrsquos

consent37

a) For purposes of this Act a ldquosalerdquo is defined to be a ldquotransfer in exchange for

anything of valuerdquo

b) Information is considered to be information ldquoabout a personrsquos search queriesrdquo if

individual search queries are associated with ldquoany identifier including without

limitation a name address phone number email address government identification

number date of birth or IP addressrdquo

c) The Act does not apply to non-sale transfers of such information nor does it apply

to any subsequent transfers of the same information after an initial transfer by the

search engine whether or not those subsequent transfers are sales

d) The Act contains explicit exceptions for disclosures to law enforcement agencies

pursuant to a warrant subpoena or court order and disclosures incident to the

search enginersquos ordinary course of business

e) The Act provides for compensatory or statutory damages at the plaintiffrsquos election

as well as punitive damages for a ldquowillful violationrdquo

f) The Act is scheduled to become effective on May 1 201438

37 Compromis para19

38 ibid

-MEMORANDUM for theRESPONDENT-

14 On May 20 2013 Centiplex sued in Mhugan to have the Search Privacy Act

declared invalid under the laws and Constitution of Mhugan39 But the court held the search

privacy act to be valid40

15 All of the rulings described above were appealed to the Mhugan Supreme Court the

highest appellate court in Mhugan and the Mhugan Supreme Court dismissed all of the

appeals41

16 Sang and Centiplex have challenged all of the following in the Universal Court of

Human Rights42

a) the damages imposed on Sang for disseminating the recorded voicemail

b) the subpoena to Sang to disclose the source of the recorded voicemail

c) the order against Centiplex requiring that webpages that link to the recorded

voicemail including Sangrsquos blog posts never appear on the first page of search

results

d) the validity of the 2013 Search Privacy Act43

39 Compromis para 20

40 Ibid

41 Compromis para21

42 Compromis para 22

43 Ibid

-MEMORANDUM for theRESPONDENT-

17 No law domestic or international restricts either Sangrsquos or Centiplexrsquos standing to

bring these challenges44 Both Sangrsquos and Centiplexrsquos positions have been rejected on the

merits in the domestic courts of Mhugan and all appeals or other legal remedies within the

Mhuganian court system have been exhausted45

STATEMENT OF JURISDICTION

CASE CONCERNING RIGHTS AND OBLIGATIONS UNDER THE UDHR

SANG AND CENTIPLEX Applicants

v

44 Compromis para 23

45 Ibid

-MEMORANDUM for theRESPONDENT-

THE REPUBLIC OF MHUGAN Respondent

ldquoSang and Centiplex (the Applicants) and the Republic of Mhugan (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 Mhuganian means the

Universal Freedom of Expression Court has jurisdiction in this matterrdquo

IN THE UNIVERSAL FREEDOM OF EXPRESSION COURT

THE RESPONDENT MOST HUMBLY AND RESPECTFULLY SUBMITS TO THE

JURISDICTION OF THIS HONrsquoBLE COURT

QUESTIONSPRESENTED

THE FOLLOWING QUESTIONS HAVE BEEN PRESENTED BEFORE THE COURT

FOR ITS DETERMINATION

1 WHETHER THE DAMAGES IMPOSED ON THE APPLICANT ARE CONSISTENT

WITH THE PROVISIONS OF THE UDHR

-MEMORANDUM for theRESPONDENT-

2 WHETHER THE REQUIREMENT TO DISCLOSE THE SOURCE OF THE

RECORDED VOICEMAIL IS CONSISTENT WITH THE PROVISIONS OF THE

UDHR

3 WHETHER THE SECTION OF THE WIRETAP ACT THAT PROVIDES FOR A

SPECIAL PROVISIONAL REMEDY IS CONSISTENT WITH THE UDHR

4 WHETHER THE PROVISIONS OF THE 2013 SEARCH PRIVACY ACT ARE

CONSISTENT WITH THE UDHR

SUMMARYOF ARGUMENTS

A The courts finding imposed damages of 400000 MHD on the Applicant First the

requirement does not infringe the right to freedom of expression of the Applicant Herein

firstly Respondent submits that the impugned requirement does not restrict the right to

freedom of expression and secondly it does not cause a chilling effect Second property

rights under Article 17 are not infringed because the Applicant cannot enjoy his right by

violating ones right under Article 12 The allegation emphasised by the Applicant does not

contribute to public debate as there are no facts substantiating the allegation Third the

-MEMORANDUM for theRESPONDENT-

Respondent possess a reasonable expectation of privacy under Article 12 which has been

violated after the dissemination of the unauthorised information took place In any event the

restriction is permissible under Article 29(2) of the UDHR It is prescribedby law under the

Wiretap Act The situation in Mhugan shows that the Wiretap Act is clearly in pursuit of the

legitimate aims of serves to protect an individualrsquos right from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR The restriction is necessary in a

democratic society as it corresponds to a pressing social need and is proportionate to the

legitimate aims

B The requirement by the court has mandated the Applicant to disclose the identity of

the source of the voicemail and it does not contravene the rights to freedom of expression

enshrined in Article 19 of the UDHR Herein firstly Article 19 does not include the right to

anonymity secondly it does not cause a chilling effect and finally the requirement does

not constitute prior restraint

Further the requirement does notcontravene the right to privacy guaranteed under Article 12

of the UDHR because there is no actual subjective expectation of privacy which is

objectively reasonable Finally theright to remedy enshrined in Article 8 of the UDHR has

not been violated because the Respondent has a right to effective remedy which is possible

only when the Applicant will disclose the name of the source of the information that

infiltrated the voicemailIn any event these measures are valid limitations under Article

29(2) of the UDHR Theysatisfy the three-tiered test of legality legitimacy and necessity

C The requirement by the Court mandated Centiplex to remove the impugned

information from the first page of search result First it does not contravene the right to

expression enshrined in Article 19 of the UDHR Herein firstly the restriction doesnt

impose filtering or prior restraint secondly it does not create a Chilling effect Second the

-MEMORANDUM for theRESPONDENT-

right to privacy guaranteed under Article 12 is violated as it has a superseding effect on

Applicants right guaranteed under Article 19 In any event these measures are valid

limitations under Article 29(2) of the UDHR They satisfy the three-tier test of legality

legitimacy and necessity

D The requirement under the 2013 Search Privacy Act is consistent with the UDHR

First the requirement does not contravene right to privacy enshrined in Article 12 of the

UDHRItexemplifies how in certain circumstances the right to privacy outweighs the right

to freedom of expression Second it does not contravene Article 19 as it complies with the

three-tier test under Article 29(2) The restriction is prescribed by law as it is made under the

authority of the SPA It is pursuant to the legitimate aim of protection of rights of others as

the Respondent possesses a reasonable expectation of privacy Further the restriction is

necessary in ademocratic society as the dissemination does not warrant to a debate of

general interest

ARGUMENTS

A THE DAMAGES IMPOSED ON THE APPLICANT ARE JUST FAIR AND

CONSISTENT WITH THE PROVISIONS OF THE UDHR

1 The courts finding imposed damages of 400000 MHD46 on the Applicant

Respondent submits that this requirement is consistent with the right to freedom of speech

and expression under Article 19 [I] right to property under Article 17 [II] and valid under

46 Compromis para16

-MEMORANDUM for theRESPONDENT-

Article 29(2) [III] Moreover the dissemination was privacy intrusive under Article 12

UDHR [IV]

I The requirement is not a restriction on Article 19 UDHR

2 Article 19 guarantees ldquothe right to freedom of opinion and expression hellip without

interferencehellipthrough any mediardquo47 Respondent submits that the impugned requirement

does not restrict the right to freedom of expression [a] and does not cause a chilling effect

[b]

a) The requirement does not restrict the freedom of expression

3 Notwithstanding the pressrsquo vital ldquowatchdogrdquo role48 journalists cannot be released

from their duty to obey the ordinary law on the basis that Article 19 of the UDHR affords

them protection49 In Stoll v Switzerland the ECtHR held that there is no lsquowholly

unrestricted freedom of expression even with respect to press reporting of matters of serious

public concernrsquo50 The Respondent emphasises the Courtrsquos sentiment that journalistic

ethics51 play a considerably important role lsquogiven the influence wielded by the media in

contemporary societyrsquo52 It is no excuse to say that Sangrsquos duty as a journalist compelled

47 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19 See also International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

48 Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government Ethics(The ANNALS of the American Academy of Political and Social Science1995 )

49Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

50Stoll (n 49) BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR 20 May 1999) 65

51 Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5 October 2013

52Stoll (n 49) 104

-MEMORANDUM for theRESPONDENT-

him to commit an unlawful act53 when in fact this duty could have been discharged through

legal and ethical means54

4 Moreover it is established that ldquonews broadcasting should be based on truthfulness

ensured by the appropriate means of verification and proof and impartiality in

presentation description and narrationrdquo55 Sang clearly did not follow these standards56

Having in mind that ldquoduties and responsibilities which accompany the exercise of the right

tofreedom of expression by media professionals assume special significance in situations

ofconflict and tensionrdquo57 it can be manifestly perceived that Rho had sent the voicemailonly

to let off some steam to his good friend Taur58 which proves prima faciethere was no such

situation prevailing and dissemination does not meet these standards

b) The impugned requirement does not cause a lsquoChilling effectrsquo

5 Ultimately the Respondent reiterates that there is no interference with the freedom

of the press59 Further the damages60 imposed upon Sang do not amount to a form of

censorship61 intended to discourage the press from expressing criticism62 Requirement to

53 Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt accessed 5 October 2013

54 Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013

55 Resolution 1003 (1993) on the ethics of journalism adopted by the Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

56 Compromis para13

57Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

58 Compromis para11

59Freedom of the Press lthttpwwwpuclorgfrom-archivesMediafreedom-presshtmgt accessed 9 October 210360 Compromis para 16

61 Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October 2013

62Stoll (n 49) 154

-MEMORANDUM for theRESPONDENT-

pay damages was merely to discourage journalist for adopting unlawful methods for

obtaining information63 protect right to privacy enshrined under Article 12 UDHR and

public order64 and is wholly proportionate in this instance The safeguard afforded by

freedom of speech in relation to journalistic reporting on issues of general interest is subject

to the journalistacting in good faith and in accordance with the ethics of journalism65

Regardless of the Applicantrsquos misguided beliefs and best intentions his profession is no

source of immunity or impunity66 the road to perdition is paved with bona-fide intentions

II The requirement does not restrict Article 17 UDHR

6 Sang had doubtlessly breached his lsquoduties and responsibilitiesrsquo67 the ethics of

journalism68 and did not act lsquoin good faithrsquo69Besides the information lsquodoes not bear on

matters of general importancersquo70 and its dissemination is an abuse of the pressrsquos ldquowatchdogrdquo

role71To enhance this contention reliance is placed upon three groundsFirst while earlier

63 Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-

codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

64 Public Order lthttpwwwusiporgguiding-principles-stabilization-and-reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October 2013

65Stoll (n 32) 103

66Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) International Court of Justice 14 February 2002

67The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

68BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20 May 1999)

69Pedersen (n 44)

70Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

71Warren(n 49)

-MEMORANDUM for theRESPONDENT-

decisions of the Strasbourg courts tend not to tolerate high damages awards72 none of them

involved the scale of character assassination like in this case73Second spousal abuse74 is a

serious allegation aimed at scandalising Rhorsquos reputation for negative publicity75 purposes

and third such an allegation does not contribute to public debate where there are no facts

substantiating the allegation76

7 Furthermore such an allegation is solely speculative and was coldly calculated to

inflict maximum damage to Rhorsquos reputation77 Rhorsquos loss must be seen in the context of

his negative publicity78 and its impact on his pecuniary loss arising from the protest79 In

addition to that the grief over loss of reputation and honour which was clearly compounded

by the tasteless spousal abuse allegations80 Rho has absolute right to ask for damages since

his right to privacy is in issue and since ldquothe possibility of taking an action under civil law

should be guaranteed to enable a victim to claim possible damages for invasion of

privacyrdquo81 Furthermore the damages are reasonable and does not violate right to enjoyment

of property of the Applicant

72Jersild v Denmark App no 159808 (ECHR 23 September 1994)

73Clarification 10

74Domestic Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt accessed 6 October 2013

75 What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October 2013

76 Compromis para12

77 Compromis para13

78 Clarification 10

79 Compromis para9

80Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June 2007)

81 Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary Assembly of Council of Europe 26 July 1998 Article 14(i)

-MEMORANDUM for theRESPONDENT-

III In any event the requirement is permissible under Article 29(2) UDHR

a) The requirement is prescribed by law

8 Imposing damages on Sang for breach of the Wiretap Act82 is a justified interference

with his freedom of expression The interference in question is validly provided by law and

serves to protect an individualrsquos right to protection from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR

b) The requirement is in pursuance of legitimate aims

9 The ECtHR in Handyside v United Kingdom83 acknowledged that lsquostate authorities

are in principle in a better position than the international judge to give an opinion on the

exact content of these requirements as well as on the necessity of a restriction of a

penaltyrsquo84 Whether a restriction is necessary in the circumstances is therefore an inquiry

based on the facts and circumstances prevailing in the country concerned which the national

authorities are in a better position to undertake85 For the foregoing reasons the requirement

is in pursuance of legitimate aims

c) The restriction is necessary in a democratic society

10 The thrust of the Mhugan courtrsquos reasoning in imposing damages on Sang was

directed at his dissemination of lsquounlawfully obtained materialrsquo86 ie Rhorsquos recorded

82 Compromis para14

83 App no 549372( ECHR 7 December 1976)

84Handyside(n 28) at [48] The Sunday Times (n 8) Joint Dissenting Opinion of Judges Wiarda Cremona Thor Vilhjalmsson Ryssdal Ganshof van der Meersch Sir Gerald Fitzmaurice Bindschedler-Robert Liesh and Matscher

85Case of Klass and Others v Germany App no 502971(EHRR 6 September 1978)

86 Compromis para16

-MEMORANDUM for theRESPONDENT-

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 23: Oxford Respondent

TaurAklamit17 In the voicemail someone identifying himself as ldquoBansitrdquo said that he was

ldquofurious with my wife for not being more obedientrdquo and that ldquoI need to give her a good

smacking to show her whorsquos in chargerdquo18 Sang wrote in his post that he got this recording

from someone who tried to get into Aklamitrsquos voicemail Sang also wrote ldquoso the rumors are

true Boycott Rho and donrsquot even think about dancing the PokeacutePokeacuterdquo 19

6 The next day Sang posted again to gain more popularity- ldquoMore evidence this time

from Rhorsquos web searches which include lsquohow to control your wifersquo and lsquowhipping

techniquesrsquordquo Sang was very anxious to acquire information regarding Rho and therefore he

purchased Rhorsquos profile from Dexian for 20000 MHD which is approximately 002 Euros

7 On May 4 Rho held a press conference with his wife at his side where he stated

that he left the recorded voicemail for his friend TaurAlkamit and he would never even

dream of striking his wife He called Sang and whoever had recorded the voicemail

ldquovicious unethical and unprofessional rumor mongersrdquo who were ldquocriminals who deserve

to be punishedrdquo while his wife was busy listening to him and did not utter a word at the

conference On May 5 Sang again posted a reply stating that he was disgruntled by Rhorsquos

explanations

8 Sang clarified that the source of the voicemail had explained to him how he or she

had come across the message20 The source had entered Aklamitrsquos number by mistake

Aklamit and the source apparently shared the same password because neither had ever 17 Compromis para 9

18 Ibid

19 Ibid

20 Compromis para13

-MEMORANDUM for theRESPONDENT-

changed it from the default password for the voicemail system ldquo123456rdquo Before the source

had realized the mistake heshe clicked on the first message and heard it21 Suspecting that

the ldquoBansitrdquo on the message was in fact Rho the source then realized that this mailbox was

not hishers The source downloaded the copy of the message and sent the copy to Sang but

asking him not to reveal hisher identity22

PROVISIONS OF WIRETAP ACT

9 Mhuganian law makes it illegal under the Wiretap Act to ldquointentionally intercept or

obtain unauthorized access to any telephone or electronic communications whether in

transit or in storage23rdquo The Wiretap Act further makes it illegal for ldquoany person to

disseminate the contents of a telephone or electronic communications that the person knows

to have been unlawfully intercepted or obtained under this Act24rdquo The Wiretap Act provides

for both civil and criminal penalties Among the civil penalties are statutory damages up to

1000000 MHD The portion of the Wiretap Act described here contains an exception for

anyone acting in an official government capacity25

The Wiretap Act defines ndash

a) ldquodirectly accessedrdquo to include both (1) a link that leads directly to the material and

(2) any link that from the surrounding context reasonably indicates that it will lead

21 Ibid

22 Ibid

23 Compromis para14

24 Ibid

25 Ibid

-MEMORANDUM for theRESPONDENT-

to the prohibited material and does in fact lead to such material regardless of how

many links it takes to reach the prohibited material26

b) A search engine can meet its obligations under such an order by de-indexing the

relevant web pages but such de-indexing is not required so long as the relevant web

pages do not appear on the first page of search results27

c) The order remains in force unless and until the court rules against the plaintiff on

the Wiretap Act claim (or an appellate court rules against the plaintiff on this claim)

or the case is otherwise dismissed If the plaintiff prevails on the claim and

continues to prevail through any appeals the order effectively becomes permanent28

d) The Act provides for both civil and criminal penalties for a violation of such a

search engine order with statutory damages of up to 10000 MHD per day of

violation for a negligent violation and up to 1000000 MHD per day for an

intentional violation Criminal penalties are only available for an intentional

violation29

10 On May 8 2013 Rho sued Sang under the Wiretap Act for knowingly disseminating

the contents of unlawfully obtained communications30 Rho immediately applied for a search

engine order under the Act against Centiplex which the court granted31 The court

26 Compromis para15

27 Ibid

28 Ibid

29 Ibid

30 Compromis para16

31 ibid

-MEMORANDUM for theRESPONDENT-

ultimately ruled that Sang had violated the Wiretap Act and awarded statutory damages to

Rho of 400000 MHD In so ruling the court found under Mhuganian law that while the

sourcersquos initial hearing of the voicemail message may have been accidental the subsequent

downloading of the message to hisher computer was intentional and unauthorized under the

Wiretap Act and that furthermore because Sang had recounted on his blog all of the

relevant facts about the circumstances under which the source had acquired the voicemail

message Sang had the knowledge required to be liable under the Act32

11 Centiplex was given the search engine order by the court for disseminating the

contents of the recorded voicemail under the wiretap act and centiplex immediately began to

comply with the order entered against it33 Centiplex made an appearance in Rhorsquos case

against Sang in order to challenge the validity of the search engine order but the court

upheld the order34

12 In the same lawsuit Rho also sued the unknown source of the recorded voicemail

message as a ldquoJohn Doe35rdquo Rho subpoenaed Sang for the identity of that person Sang filed

a motion with the court to quash the subpoena asserting a privilege to hide the identity of

his source36 The court denied the motion to quash as under Mhuganian law the court does

recognize a qualified privilege not to reveal sources but only to ldquoprofessional journalistsrdquo

32 ibid

33 Compromis para1617

34 Ibid

35 Compromis para18

36 Ibid

-MEMORANDUM for theRESPONDENT-

but Sang was not a professional journalist as he did not disseminate the information to the

public for the gain of livelihood as the revenue goes to the CentiplexHowever the court did

grant a stay of the subpoena

2013 SEARCH PRIVACY ACT

13 On May 15 2013 Mhugan enacted the Search Privacy Act which makes it unlawful

for a search engine to sell information about a personrsquos search queries without that personrsquos

consent37

a) For purposes of this Act a ldquosalerdquo is defined to be a ldquotransfer in exchange for

anything of valuerdquo

b) Information is considered to be information ldquoabout a personrsquos search queriesrdquo if

individual search queries are associated with ldquoany identifier including without

limitation a name address phone number email address government identification

number date of birth or IP addressrdquo

c) The Act does not apply to non-sale transfers of such information nor does it apply

to any subsequent transfers of the same information after an initial transfer by the

search engine whether or not those subsequent transfers are sales

d) The Act contains explicit exceptions for disclosures to law enforcement agencies

pursuant to a warrant subpoena or court order and disclosures incident to the

search enginersquos ordinary course of business

e) The Act provides for compensatory or statutory damages at the plaintiffrsquos election

as well as punitive damages for a ldquowillful violationrdquo

f) The Act is scheduled to become effective on May 1 201438

37 Compromis para19

38 ibid

-MEMORANDUM for theRESPONDENT-

14 On May 20 2013 Centiplex sued in Mhugan to have the Search Privacy Act

declared invalid under the laws and Constitution of Mhugan39 But the court held the search

privacy act to be valid40

15 All of the rulings described above were appealed to the Mhugan Supreme Court the

highest appellate court in Mhugan and the Mhugan Supreme Court dismissed all of the

appeals41

16 Sang and Centiplex have challenged all of the following in the Universal Court of

Human Rights42

a) the damages imposed on Sang for disseminating the recorded voicemail

b) the subpoena to Sang to disclose the source of the recorded voicemail

c) the order against Centiplex requiring that webpages that link to the recorded

voicemail including Sangrsquos blog posts never appear on the first page of search

results

d) the validity of the 2013 Search Privacy Act43

39 Compromis para 20

40 Ibid

41 Compromis para21

42 Compromis para 22

43 Ibid

-MEMORANDUM for theRESPONDENT-

17 No law domestic or international restricts either Sangrsquos or Centiplexrsquos standing to

bring these challenges44 Both Sangrsquos and Centiplexrsquos positions have been rejected on the

merits in the domestic courts of Mhugan and all appeals or other legal remedies within the

Mhuganian court system have been exhausted45

STATEMENT OF JURISDICTION

CASE CONCERNING RIGHTS AND OBLIGATIONS UNDER THE UDHR

SANG AND CENTIPLEX Applicants

v

44 Compromis para 23

45 Ibid

-MEMORANDUM for theRESPONDENT-

THE REPUBLIC OF MHUGAN Respondent

ldquoSang and Centiplex (the Applicants) and the Republic of Mhugan (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 Mhuganian means the

Universal Freedom of Expression Court has jurisdiction in this matterrdquo

IN THE UNIVERSAL FREEDOM OF EXPRESSION COURT

THE RESPONDENT MOST HUMBLY AND RESPECTFULLY SUBMITS TO THE

JURISDICTION OF THIS HONrsquoBLE COURT

QUESTIONSPRESENTED

THE FOLLOWING QUESTIONS HAVE BEEN PRESENTED BEFORE THE COURT

FOR ITS DETERMINATION

1 WHETHER THE DAMAGES IMPOSED ON THE APPLICANT ARE CONSISTENT

WITH THE PROVISIONS OF THE UDHR

-MEMORANDUM for theRESPONDENT-

2 WHETHER THE REQUIREMENT TO DISCLOSE THE SOURCE OF THE

RECORDED VOICEMAIL IS CONSISTENT WITH THE PROVISIONS OF THE

UDHR

3 WHETHER THE SECTION OF THE WIRETAP ACT THAT PROVIDES FOR A

SPECIAL PROVISIONAL REMEDY IS CONSISTENT WITH THE UDHR

4 WHETHER THE PROVISIONS OF THE 2013 SEARCH PRIVACY ACT ARE

CONSISTENT WITH THE UDHR

SUMMARYOF ARGUMENTS

A The courts finding imposed damages of 400000 MHD on the Applicant First the

requirement does not infringe the right to freedom of expression of the Applicant Herein

firstly Respondent submits that the impugned requirement does not restrict the right to

freedom of expression and secondly it does not cause a chilling effect Second property

rights under Article 17 are not infringed because the Applicant cannot enjoy his right by

violating ones right under Article 12 The allegation emphasised by the Applicant does not

contribute to public debate as there are no facts substantiating the allegation Third the

-MEMORANDUM for theRESPONDENT-

Respondent possess a reasonable expectation of privacy under Article 12 which has been

violated after the dissemination of the unauthorised information took place In any event the

restriction is permissible under Article 29(2) of the UDHR It is prescribedby law under the

Wiretap Act The situation in Mhugan shows that the Wiretap Act is clearly in pursuit of the

legitimate aims of serves to protect an individualrsquos right from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR The restriction is necessary in a

democratic society as it corresponds to a pressing social need and is proportionate to the

legitimate aims

B The requirement by the court has mandated the Applicant to disclose the identity of

the source of the voicemail and it does not contravene the rights to freedom of expression

enshrined in Article 19 of the UDHR Herein firstly Article 19 does not include the right to

anonymity secondly it does not cause a chilling effect and finally the requirement does

not constitute prior restraint

Further the requirement does notcontravene the right to privacy guaranteed under Article 12

of the UDHR because there is no actual subjective expectation of privacy which is

objectively reasonable Finally theright to remedy enshrined in Article 8 of the UDHR has

not been violated because the Respondent has a right to effective remedy which is possible

only when the Applicant will disclose the name of the source of the information that

infiltrated the voicemailIn any event these measures are valid limitations under Article

29(2) of the UDHR Theysatisfy the three-tiered test of legality legitimacy and necessity

C The requirement by the Court mandated Centiplex to remove the impugned

information from the first page of search result First it does not contravene the right to

expression enshrined in Article 19 of the UDHR Herein firstly the restriction doesnt

impose filtering or prior restraint secondly it does not create a Chilling effect Second the

-MEMORANDUM for theRESPONDENT-

right to privacy guaranteed under Article 12 is violated as it has a superseding effect on

Applicants right guaranteed under Article 19 In any event these measures are valid

limitations under Article 29(2) of the UDHR They satisfy the three-tier test of legality

legitimacy and necessity

D The requirement under the 2013 Search Privacy Act is consistent with the UDHR

First the requirement does not contravene right to privacy enshrined in Article 12 of the

UDHRItexemplifies how in certain circumstances the right to privacy outweighs the right

to freedom of expression Second it does not contravene Article 19 as it complies with the

three-tier test under Article 29(2) The restriction is prescribed by law as it is made under the

authority of the SPA It is pursuant to the legitimate aim of protection of rights of others as

the Respondent possesses a reasonable expectation of privacy Further the restriction is

necessary in ademocratic society as the dissemination does not warrant to a debate of

general interest

ARGUMENTS

A THE DAMAGES IMPOSED ON THE APPLICANT ARE JUST FAIR AND

CONSISTENT WITH THE PROVISIONS OF THE UDHR

1 The courts finding imposed damages of 400000 MHD46 on the Applicant

Respondent submits that this requirement is consistent with the right to freedom of speech

and expression under Article 19 [I] right to property under Article 17 [II] and valid under

46 Compromis para16

-MEMORANDUM for theRESPONDENT-

Article 29(2) [III] Moreover the dissemination was privacy intrusive under Article 12

UDHR [IV]

I The requirement is not a restriction on Article 19 UDHR

2 Article 19 guarantees ldquothe right to freedom of opinion and expression hellip without

interferencehellipthrough any mediardquo47 Respondent submits that the impugned requirement

does not restrict the right to freedom of expression [a] and does not cause a chilling effect

[b]

a) The requirement does not restrict the freedom of expression

3 Notwithstanding the pressrsquo vital ldquowatchdogrdquo role48 journalists cannot be released

from their duty to obey the ordinary law on the basis that Article 19 of the UDHR affords

them protection49 In Stoll v Switzerland the ECtHR held that there is no lsquowholly

unrestricted freedom of expression even with respect to press reporting of matters of serious

public concernrsquo50 The Respondent emphasises the Courtrsquos sentiment that journalistic

ethics51 play a considerably important role lsquogiven the influence wielded by the media in

contemporary societyrsquo52 It is no excuse to say that Sangrsquos duty as a journalist compelled

47 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19 See also International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

48 Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government Ethics(The ANNALS of the American Academy of Political and Social Science1995 )

49Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

50Stoll (n 49) BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR 20 May 1999) 65

51 Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5 October 2013

52Stoll (n 49) 104

-MEMORANDUM for theRESPONDENT-

him to commit an unlawful act53 when in fact this duty could have been discharged through

legal and ethical means54

4 Moreover it is established that ldquonews broadcasting should be based on truthfulness

ensured by the appropriate means of verification and proof and impartiality in

presentation description and narrationrdquo55 Sang clearly did not follow these standards56

Having in mind that ldquoduties and responsibilities which accompany the exercise of the right

tofreedom of expression by media professionals assume special significance in situations

ofconflict and tensionrdquo57 it can be manifestly perceived that Rho had sent the voicemailonly

to let off some steam to his good friend Taur58 which proves prima faciethere was no such

situation prevailing and dissemination does not meet these standards

b) The impugned requirement does not cause a lsquoChilling effectrsquo

5 Ultimately the Respondent reiterates that there is no interference with the freedom

of the press59 Further the damages60 imposed upon Sang do not amount to a form of

censorship61 intended to discourage the press from expressing criticism62 Requirement to

53 Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt accessed 5 October 2013

54 Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013

55 Resolution 1003 (1993) on the ethics of journalism adopted by the Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

56 Compromis para13

57Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

58 Compromis para11

59Freedom of the Press lthttpwwwpuclorgfrom-archivesMediafreedom-presshtmgt accessed 9 October 210360 Compromis para 16

61 Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October 2013

62Stoll (n 49) 154

-MEMORANDUM for theRESPONDENT-

pay damages was merely to discourage journalist for adopting unlawful methods for

obtaining information63 protect right to privacy enshrined under Article 12 UDHR and

public order64 and is wholly proportionate in this instance The safeguard afforded by

freedom of speech in relation to journalistic reporting on issues of general interest is subject

to the journalistacting in good faith and in accordance with the ethics of journalism65

Regardless of the Applicantrsquos misguided beliefs and best intentions his profession is no

source of immunity or impunity66 the road to perdition is paved with bona-fide intentions

II The requirement does not restrict Article 17 UDHR

6 Sang had doubtlessly breached his lsquoduties and responsibilitiesrsquo67 the ethics of

journalism68 and did not act lsquoin good faithrsquo69Besides the information lsquodoes not bear on

matters of general importancersquo70 and its dissemination is an abuse of the pressrsquos ldquowatchdogrdquo

role71To enhance this contention reliance is placed upon three groundsFirst while earlier

63 Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-

codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

64 Public Order lthttpwwwusiporgguiding-principles-stabilization-and-reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October 2013

65Stoll (n 32) 103

66Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) International Court of Justice 14 February 2002

67The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

68BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20 May 1999)

69Pedersen (n 44)

70Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

71Warren(n 49)

-MEMORANDUM for theRESPONDENT-

decisions of the Strasbourg courts tend not to tolerate high damages awards72 none of them

involved the scale of character assassination like in this case73Second spousal abuse74 is a

serious allegation aimed at scandalising Rhorsquos reputation for negative publicity75 purposes

and third such an allegation does not contribute to public debate where there are no facts

substantiating the allegation76

7 Furthermore such an allegation is solely speculative and was coldly calculated to

inflict maximum damage to Rhorsquos reputation77 Rhorsquos loss must be seen in the context of

his negative publicity78 and its impact on his pecuniary loss arising from the protest79 In

addition to that the grief over loss of reputation and honour which was clearly compounded

by the tasteless spousal abuse allegations80 Rho has absolute right to ask for damages since

his right to privacy is in issue and since ldquothe possibility of taking an action under civil law

should be guaranteed to enable a victim to claim possible damages for invasion of

privacyrdquo81 Furthermore the damages are reasonable and does not violate right to enjoyment

of property of the Applicant

72Jersild v Denmark App no 159808 (ECHR 23 September 1994)

73Clarification 10

74Domestic Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt accessed 6 October 2013

75 What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October 2013

76 Compromis para12

77 Compromis para13

78 Clarification 10

79 Compromis para9

80Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June 2007)

81 Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary Assembly of Council of Europe 26 July 1998 Article 14(i)

-MEMORANDUM for theRESPONDENT-

III In any event the requirement is permissible under Article 29(2) UDHR

a) The requirement is prescribed by law

8 Imposing damages on Sang for breach of the Wiretap Act82 is a justified interference

with his freedom of expression The interference in question is validly provided by law and

serves to protect an individualrsquos right to protection from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR

b) The requirement is in pursuance of legitimate aims

9 The ECtHR in Handyside v United Kingdom83 acknowledged that lsquostate authorities

are in principle in a better position than the international judge to give an opinion on the

exact content of these requirements as well as on the necessity of a restriction of a

penaltyrsquo84 Whether a restriction is necessary in the circumstances is therefore an inquiry

based on the facts and circumstances prevailing in the country concerned which the national

authorities are in a better position to undertake85 For the foregoing reasons the requirement

is in pursuance of legitimate aims

c) The restriction is necessary in a democratic society

10 The thrust of the Mhugan courtrsquos reasoning in imposing damages on Sang was

directed at his dissemination of lsquounlawfully obtained materialrsquo86 ie Rhorsquos recorded

82 Compromis para14

83 App no 549372( ECHR 7 December 1976)

84Handyside(n 28) at [48] The Sunday Times (n 8) Joint Dissenting Opinion of Judges Wiarda Cremona Thor Vilhjalmsson Ryssdal Ganshof van der Meersch Sir Gerald Fitzmaurice Bindschedler-Robert Liesh and Matscher

85Case of Klass and Others v Germany App no 502971(EHRR 6 September 1978)

86 Compromis para16

-MEMORANDUM for theRESPONDENT-

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 24: Oxford Respondent

changed it from the default password for the voicemail system ldquo123456rdquo Before the source

had realized the mistake heshe clicked on the first message and heard it21 Suspecting that

the ldquoBansitrdquo on the message was in fact Rho the source then realized that this mailbox was

not hishers The source downloaded the copy of the message and sent the copy to Sang but

asking him not to reveal hisher identity22

PROVISIONS OF WIRETAP ACT

9 Mhuganian law makes it illegal under the Wiretap Act to ldquointentionally intercept or

obtain unauthorized access to any telephone or electronic communications whether in

transit or in storage23rdquo The Wiretap Act further makes it illegal for ldquoany person to

disseminate the contents of a telephone or electronic communications that the person knows

to have been unlawfully intercepted or obtained under this Act24rdquo The Wiretap Act provides

for both civil and criminal penalties Among the civil penalties are statutory damages up to

1000000 MHD The portion of the Wiretap Act described here contains an exception for

anyone acting in an official government capacity25

The Wiretap Act defines ndash

a) ldquodirectly accessedrdquo to include both (1) a link that leads directly to the material and

(2) any link that from the surrounding context reasonably indicates that it will lead

21 Ibid

22 Ibid

23 Compromis para14

24 Ibid

25 Ibid

-MEMORANDUM for theRESPONDENT-

to the prohibited material and does in fact lead to such material regardless of how

many links it takes to reach the prohibited material26

b) A search engine can meet its obligations under such an order by de-indexing the

relevant web pages but such de-indexing is not required so long as the relevant web

pages do not appear on the first page of search results27

c) The order remains in force unless and until the court rules against the plaintiff on

the Wiretap Act claim (or an appellate court rules against the plaintiff on this claim)

or the case is otherwise dismissed If the plaintiff prevails on the claim and

continues to prevail through any appeals the order effectively becomes permanent28

d) The Act provides for both civil and criminal penalties for a violation of such a

search engine order with statutory damages of up to 10000 MHD per day of

violation for a negligent violation and up to 1000000 MHD per day for an

intentional violation Criminal penalties are only available for an intentional

violation29

10 On May 8 2013 Rho sued Sang under the Wiretap Act for knowingly disseminating

the contents of unlawfully obtained communications30 Rho immediately applied for a search

engine order under the Act against Centiplex which the court granted31 The court

26 Compromis para15

27 Ibid

28 Ibid

29 Ibid

30 Compromis para16

31 ibid

-MEMORANDUM for theRESPONDENT-

ultimately ruled that Sang had violated the Wiretap Act and awarded statutory damages to

Rho of 400000 MHD In so ruling the court found under Mhuganian law that while the

sourcersquos initial hearing of the voicemail message may have been accidental the subsequent

downloading of the message to hisher computer was intentional and unauthorized under the

Wiretap Act and that furthermore because Sang had recounted on his blog all of the

relevant facts about the circumstances under which the source had acquired the voicemail

message Sang had the knowledge required to be liable under the Act32

11 Centiplex was given the search engine order by the court for disseminating the

contents of the recorded voicemail under the wiretap act and centiplex immediately began to

comply with the order entered against it33 Centiplex made an appearance in Rhorsquos case

against Sang in order to challenge the validity of the search engine order but the court

upheld the order34

12 In the same lawsuit Rho also sued the unknown source of the recorded voicemail

message as a ldquoJohn Doe35rdquo Rho subpoenaed Sang for the identity of that person Sang filed

a motion with the court to quash the subpoena asserting a privilege to hide the identity of

his source36 The court denied the motion to quash as under Mhuganian law the court does

recognize a qualified privilege not to reveal sources but only to ldquoprofessional journalistsrdquo

32 ibid

33 Compromis para1617

34 Ibid

35 Compromis para18

36 Ibid

-MEMORANDUM for theRESPONDENT-

but Sang was not a professional journalist as he did not disseminate the information to the

public for the gain of livelihood as the revenue goes to the CentiplexHowever the court did

grant a stay of the subpoena

2013 SEARCH PRIVACY ACT

13 On May 15 2013 Mhugan enacted the Search Privacy Act which makes it unlawful

for a search engine to sell information about a personrsquos search queries without that personrsquos

consent37

a) For purposes of this Act a ldquosalerdquo is defined to be a ldquotransfer in exchange for

anything of valuerdquo

b) Information is considered to be information ldquoabout a personrsquos search queriesrdquo if

individual search queries are associated with ldquoany identifier including without

limitation a name address phone number email address government identification

number date of birth or IP addressrdquo

c) The Act does not apply to non-sale transfers of such information nor does it apply

to any subsequent transfers of the same information after an initial transfer by the

search engine whether or not those subsequent transfers are sales

d) The Act contains explicit exceptions for disclosures to law enforcement agencies

pursuant to a warrant subpoena or court order and disclosures incident to the

search enginersquos ordinary course of business

e) The Act provides for compensatory or statutory damages at the plaintiffrsquos election

as well as punitive damages for a ldquowillful violationrdquo

f) The Act is scheduled to become effective on May 1 201438

37 Compromis para19

38 ibid

-MEMORANDUM for theRESPONDENT-

14 On May 20 2013 Centiplex sued in Mhugan to have the Search Privacy Act

declared invalid under the laws and Constitution of Mhugan39 But the court held the search

privacy act to be valid40

15 All of the rulings described above were appealed to the Mhugan Supreme Court the

highest appellate court in Mhugan and the Mhugan Supreme Court dismissed all of the

appeals41

16 Sang and Centiplex have challenged all of the following in the Universal Court of

Human Rights42

a) the damages imposed on Sang for disseminating the recorded voicemail

b) the subpoena to Sang to disclose the source of the recorded voicemail

c) the order against Centiplex requiring that webpages that link to the recorded

voicemail including Sangrsquos blog posts never appear on the first page of search

results

d) the validity of the 2013 Search Privacy Act43

39 Compromis para 20

40 Ibid

41 Compromis para21

42 Compromis para 22

43 Ibid

-MEMORANDUM for theRESPONDENT-

17 No law domestic or international restricts either Sangrsquos or Centiplexrsquos standing to

bring these challenges44 Both Sangrsquos and Centiplexrsquos positions have been rejected on the

merits in the domestic courts of Mhugan and all appeals or other legal remedies within the

Mhuganian court system have been exhausted45

STATEMENT OF JURISDICTION

CASE CONCERNING RIGHTS AND OBLIGATIONS UNDER THE UDHR

SANG AND CENTIPLEX Applicants

v

44 Compromis para 23

45 Ibid

-MEMORANDUM for theRESPONDENT-

THE REPUBLIC OF MHUGAN Respondent

ldquoSang and Centiplex (the Applicants) and the Republic of Mhugan (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 Mhuganian means the

Universal Freedom of Expression Court has jurisdiction in this matterrdquo

IN THE UNIVERSAL FREEDOM OF EXPRESSION COURT

THE RESPONDENT MOST HUMBLY AND RESPECTFULLY SUBMITS TO THE

JURISDICTION OF THIS HONrsquoBLE COURT

QUESTIONSPRESENTED

THE FOLLOWING QUESTIONS HAVE BEEN PRESENTED BEFORE THE COURT

FOR ITS DETERMINATION

1 WHETHER THE DAMAGES IMPOSED ON THE APPLICANT ARE CONSISTENT

WITH THE PROVISIONS OF THE UDHR

-MEMORANDUM for theRESPONDENT-

2 WHETHER THE REQUIREMENT TO DISCLOSE THE SOURCE OF THE

RECORDED VOICEMAIL IS CONSISTENT WITH THE PROVISIONS OF THE

UDHR

3 WHETHER THE SECTION OF THE WIRETAP ACT THAT PROVIDES FOR A

SPECIAL PROVISIONAL REMEDY IS CONSISTENT WITH THE UDHR

4 WHETHER THE PROVISIONS OF THE 2013 SEARCH PRIVACY ACT ARE

CONSISTENT WITH THE UDHR

SUMMARYOF ARGUMENTS

A The courts finding imposed damages of 400000 MHD on the Applicant First the

requirement does not infringe the right to freedom of expression of the Applicant Herein

firstly Respondent submits that the impugned requirement does not restrict the right to

freedom of expression and secondly it does not cause a chilling effect Second property

rights under Article 17 are not infringed because the Applicant cannot enjoy his right by

violating ones right under Article 12 The allegation emphasised by the Applicant does not

contribute to public debate as there are no facts substantiating the allegation Third the

-MEMORANDUM for theRESPONDENT-

Respondent possess a reasonable expectation of privacy under Article 12 which has been

violated after the dissemination of the unauthorised information took place In any event the

restriction is permissible under Article 29(2) of the UDHR It is prescribedby law under the

Wiretap Act The situation in Mhugan shows that the Wiretap Act is clearly in pursuit of the

legitimate aims of serves to protect an individualrsquos right from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR The restriction is necessary in a

democratic society as it corresponds to a pressing social need and is proportionate to the

legitimate aims

B The requirement by the court has mandated the Applicant to disclose the identity of

the source of the voicemail and it does not contravene the rights to freedom of expression

enshrined in Article 19 of the UDHR Herein firstly Article 19 does not include the right to

anonymity secondly it does not cause a chilling effect and finally the requirement does

not constitute prior restraint

Further the requirement does notcontravene the right to privacy guaranteed under Article 12

of the UDHR because there is no actual subjective expectation of privacy which is

objectively reasonable Finally theright to remedy enshrined in Article 8 of the UDHR has

not been violated because the Respondent has a right to effective remedy which is possible

only when the Applicant will disclose the name of the source of the information that

infiltrated the voicemailIn any event these measures are valid limitations under Article

29(2) of the UDHR Theysatisfy the three-tiered test of legality legitimacy and necessity

C The requirement by the Court mandated Centiplex to remove the impugned

information from the first page of search result First it does not contravene the right to

expression enshrined in Article 19 of the UDHR Herein firstly the restriction doesnt

impose filtering or prior restraint secondly it does not create a Chilling effect Second the

-MEMORANDUM for theRESPONDENT-

right to privacy guaranteed under Article 12 is violated as it has a superseding effect on

Applicants right guaranteed under Article 19 In any event these measures are valid

limitations under Article 29(2) of the UDHR They satisfy the three-tier test of legality

legitimacy and necessity

D The requirement under the 2013 Search Privacy Act is consistent with the UDHR

First the requirement does not contravene right to privacy enshrined in Article 12 of the

UDHRItexemplifies how in certain circumstances the right to privacy outweighs the right

to freedom of expression Second it does not contravene Article 19 as it complies with the

three-tier test under Article 29(2) The restriction is prescribed by law as it is made under the

authority of the SPA It is pursuant to the legitimate aim of protection of rights of others as

the Respondent possesses a reasonable expectation of privacy Further the restriction is

necessary in ademocratic society as the dissemination does not warrant to a debate of

general interest

ARGUMENTS

A THE DAMAGES IMPOSED ON THE APPLICANT ARE JUST FAIR AND

CONSISTENT WITH THE PROVISIONS OF THE UDHR

1 The courts finding imposed damages of 400000 MHD46 on the Applicant

Respondent submits that this requirement is consistent with the right to freedom of speech

and expression under Article 19 [I] right to property under Article 17 [II] and valid under

46 Compromis para16

-MEMORANDUM for theRESPONDENT-

Article 29(2) [III] Moreover the dissemination was privacy intrusive under Article 12

UDHR [IV]

I The requirement is not a restriction on Article 19 UDHR

2 Article 19 guarantees ldquothe right to freedom of opinion and expression hellip without

interferencehellipthrough any mediardquo47 Respondent submits that the impugned requirement

does not restrict the right to freedom of expression [a] and does not cause a chilling effect

[b]

a) The requirement does not restrict the freedom of expression

3 Notwithstanding the pressrsquo vital ldquowatchdogrdquo role48 journalists cannot be released

from their duty to obey the ordinary law on the basis that Article 19 of the UDHR affords

them protection49 In Stoll v Switzerland the ECtHR held that there is no lsquowholly

unrestricted freedom of expression even with respect to press reporting of matters of serious

public concernrsquo50 The Respondent emphasises the Courtrsquos sentiment that journalistic

ethics51 play a considerably important role lsquogiven the influence wielded by the media in

contemporary societyrsquo52 It is no excuse to say that Sangrsquos duty as a journalist compelled

47 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19 See also International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

48 Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government Ethics(The ANNALS of the American Academy of Political and Social Science1995 )

49Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

50Stoll (n 49) BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR 20 May 1999) 65

51 Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5 October 2013

52Stoll (n 49) 104

-MEMORANDUM for theRESPONDENT-

him to commit an unlawful act53 when in fact this duty could have been discharged through

legal and ethical means54

4 Moreover it is established that ldquonews broadcasting should be based on truthfulness

ensured by the appropriate means of verification and proof and impartiality in

presentation description and narrationrdquo55 Sang clearly did not follow these standards56

Having in mind that ldquoduties and responsibilities which accompany the exercise of the right

tofreedom of expression by media professionals assume special significance in situations

ofconflict and tensionrdquo57 it can be manifestly perceived that Rho had sent the voicemailonly

to let off some steam to his good friend Taur58 which proves prima faciethere was no such

situation prevailing and dissemination does not meet these standards

b) The impugned requirement does not cause a lsquoChilling effectrsquo

5 Ultimately the Respondent reiterates that there is no interference with the freedom

of the press59 Further the damages60 imposed upon Sang do not amount to a form of

censorship61 intended to discourage the press from expressing criticism62 Requirement to

53 Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt accessed 5 October 2013

54 Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013

55 Resolution 1003 (1993) on the ethics of journalism adopted by the Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

56 Compromis para13

57Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

58 Compromis para11

59Freedom of the Press lthttpwwwpuclorgfrom-archivesMediafreedom-presshtmgt accessed 9 October 210360 Compromis para 16

61 Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October 2013

62Stoll (n 49) 154

-MEMORANDUM for theRESPONDENT-

pay damages was merely to discourage journalist for adopting unlawful methods for

obtaining information63 protect right to privacy enshrined under Article 12 UDHR and

public order64 and is wholly proportionate in this instance The safeguard afforded by

freedom of speech in relation to journalistic reporting on issues of general interest is subject

to the journalistacting in good faith and in accordance with the ethics of journalism65

Regardless of the Applicantrsquos misguided beliefs and best intentions his profession is no

source of immunity or impunity66 the road to perdition is paved with bona-fide intentions

II The requirement does not restrict Article 17 UDHR

6 Sang had doubtlessly breached his lsquoduties and responsibilitiesrsquo67 the ethics of

journalism68 and did not act lsquoin good faithrsquo69Besides the information lsquodoes not bear on

matters of general importancersquo70 and its dissemination is an abuse of the pressrsquos ldquowatchdogrdquo

role71To enhance this contention reliance is placed upon three groundsFirst while earlier

63 Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-

codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

64 Public Order lthttpwwwusiporgguiding-principles-stabilization-and-reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October 2013

65Stoll (n 32) 103

66Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) International Court of Justice 14 February 2002

67The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

68BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20 May 1999)

69Pedersen (n 44)

70Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

71Warren(n 49)

-MEMORANDUM for theRESPONDENT-

decisions of the Strasbourg courts tend not to tolerate high damages awards72 none of them

involved the scale of character assassination like in this case73Second spousal abuse74 is a

serious allegation aimed at scandalising Rhorsquos reputation for negative publicity75 purposes

and third such an allegation does not contribute to public debate where there are no facts

substantiating the allegation76

7 Furthermore such an allegation is solely speculative and was coldly calculated to

inflict maximum damage to Rhorsquos reputation77 Rhorsquos loss must be seen in the context of

his negative publicity78 and its impact on his pecuniary loss arising from the protest79 In

addition to that the grief over loss of reputation and honour which was clearly compounded

by the tasteless spousal abuse allegations80 Rho has absolute right to ask for damages since

his right to privacy is in issue and since ldquothe possibility of taking an action under civil law

should be guaranteed to enable a victim to claim possible damages for invasion of

privacyrdquo81 Furthermore the damages are reasonable and does not violate right to enjoyment

of property of the Applicant

72Jersild v Denmark App no 159808 (ECHR 23 September 1994)

73Clarification 10

74Domestic Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt accessed 6 October 2013

75 What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October 2013

76 Compromis para12

77 Compromis para13

78 Clarification 10

79 Compromis para9

80Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June 2007)

81 Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary Assembly of Council of Europe 26 July 1998 Article 14(i)

-MEMORANDUM for theRESPONDENT-

III In any event the requirement is permissible under Article 29(2) UDHR

a) The requirement is prescribed by law

8 Imposing damages on Sang for breach of the Wiretap Act82 is a justified interference

with his freedom of expression The interference in question is validly provided by law and

serves to protect an individualrsquos right to protection from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR

b) The requirement is in pursuance of legitimate aims

9 The ECtHR in Handyside v United Kingdom83 acknowledged that lsquostate authorities

are in principle in a better position than the international judge to give an opinion on the

exact content of these requirements as well as on the necessity of a restriction of a

penaltyrsquo84 Whether a restriction is necessary in the circumstances is therefore an inquiry

based on the facts and circumstances prevailing in the country concerned which the national

authorities are in a better position to undertake85 For the foregoing reasons the requirement

is in pursuance of legitimate aims

c) The restriction is necessary in a democratic society

10 The thrust of the Mhugan courtrsquos reasoning in imposing damages on Sang was

directed at his dissemination of lsquounlawfully obtained materialrsquo86 ie Rhorsquos recorded

82 Compromis para14

83 App no 549372( ECHR 7 December 1976)

84Handyside(n 28) at [48] The Sunday Times (n 8) Joint Dissenting Opinion of Judges Wiarda Cremona Thor Vilhjalmsson Ryssdal Ganshof van der Meersch Sir Gerald Fitzmaurice Bindschedler-Robert Liesh and Matscher

85Case of Klass and Others v Germany App no 502971(EHRR 6 September 1978)

86 Compromis para16

-MEMORANDUM for theRESPONDENT-

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 25: Oxford Respondent

to the prohibited material and does in fact lead to such material regardless of how

many links it takes to reach the prohibited material26

b) A search engine can meet its obligations under such an order by de-indexing the

relevant web pages but such de-indexing is not required so long as the relevant web

pages do not appear on the first page of search results27

c) The order remains in force unless and until the court rules against the plaintiff on

the Wiretap Act claim (or an appellate court rules against the plaintiff on this claim)

or the case is otherwise dismissed If the plaintiff prevails on the claim and

continues to prevail through any appeals the order effectively becomes permanent28

d) The Act provides for both civil and criminal penalties for a violation of such a

search engine order with statutory damages of up to 10000 MHD per day of

violation for a negligent violation and up to 1000000 MHD per day for an

intentional violation Criminal penalties are only available for an intentional

violation29

10 On May 8 2013 Rho sued Sang under the Wiretap Act for knowingly disseminating

the contents of unlawfully obtained communications30 Rho immediately applied for a search

engine order under the Act against Centiplex which the court granted31 The court

26 Compromis para15

27 Ibid

28 Ibid

29 Ibid

30 Compromis para16

31 ibid

-MEMORANDUM for theRESPONDENT-

ultimately ruled that Sang had violated the Wiretap Act and awarded statutory damages to

Rho of 400000 MHD In so ruling the court found under Mhuganian law that while the

sourcersquos initial hearing of the voicemail message may have been accidental the subsequent

downloading of the message to hisher computer was intentional and unauthorized under the

Wiretap Act and that furthermore because Sang had recounted on his blog all of the

relevant facts about the circumstances under which the source had acquired the voicemail

message Sang had the knowledge required to be liable under the Act32

11 Centiplex was given the search engine order by the court for disseminating the

contents of the recorded voicemail under the wiretap act and centiplex immediately began to

comply with the order entered against it33 Centiplex made an appearance in Rhorsquos case

against Sang in order to challenge the validity of the search engine order but the court

upheld the order34

12 In the same lawsuit Rho also sued the unknown source of the recorded voicemail

message as a ldquoJohn Doe35rdquo Rho subpoenaed Sang for the identity of that person Sang filed

a motion with the court to quash the subpoena asserting a privilege to hide the identity of

his source36 The court denied the motion to quash as under Mhuganian law the court does

recognize a qualified privilege not to reveal sources but only to ldquoprofessional journalistsrdquo

32 ibid

33 Compromis para1617

34 Ibid

35 Compromis para18

36 Ibid

-MEMORANDUM for theRESPONDENT-

but Sang was not a professional journalist as he did not disseminate the information to the

public for the gain of livelihood as the revenue goes to the CentiplexHowever the court did

grant a stay of the subpoena

2013 SEARCH PRIVACY ACT

13 On May 15 2013 Mhugan enacted the Search Privacy Act which makes it unlawful

for a search engine to sell information about a personrsquos search queries without that personrsquos

consent37

a) For purposes of this Act a ldquosalerdquo is defined to be a ldquotransfer in exchange for

anything of valuerdquo

b) Information is considered to be information ldquoabout a personrsquos search queriesrdquo if

individual search queries are associated with ldquoany identifier including without

limitation a name address phone number email address government identification

number date of birth or IP addressrdquo

c) The Act does not apply to non-sale transfers of such information nor does it apply

to any subsequent transfers of the same information after an initial transfer by the

search engine whether or not those subsequent transfers are sales

d) The Act contains explicit exceptions for disclosures to law enforcement agencies

pursuant to a warrant subpoena or court order and disclosures incident to the

search enginersquos ordinary course of business

e) The Act provides for compensatory or statutory damages at the plaintiffrsquos election

as well as punitive damages for a ldquowillful violationrdquo

f) The Act is scheduled to become effective on May 1 201438

37 Compromis para19

38 ibid

-MEMORANDUM for theRESPONDENT-

14 On May 20 2013 Centiplex sued in Mhugan to have the Search Privacy Act

declared invalid under the laws and Constitution of Mhugan39 But the court held the search

privacy act to be valid40

15 All of the rulings described above were appealed to the Mhugan Supreme Court the

highest appellate court in Mhugan and the Mhugan Supreme Court dismissed all of the

appeals41

16 Sang and Centiplex have challenged all of the following in the Universal Court of

Human Rights42

a) the damages imposed on Sang for disseminating the recorded voicemail

b) the subpoena to Sang to disclose the source of the recorded voicemail

c) the order against Centiplex requiring that webpages that link to the recorded

voicemail including Sangrsquos blog posts never appear on the first page of search

results

d) the validity of the 2013 Search Privacy Act43

39 Compromis para 20

40 Ibid

41 Compromis para21

42 Compromis para 22

43 Ibid

-MEMORANDUM for theRESPONDENT-

17 No law domestic or international restricts either Sangrsquos or Centiplexrsquos standing to

bring these challenges44 Both Sangrsquos and Centiplexrsquos positions have been rejected on the

merits in the domestic courts of Mhugan and all appeals or other legal remedies within the

Mhuganian court system have been exhausted45

STATEMENT OF JURISDICTION

CASE CONCERNING RIGHTS AND OBLIGATIONS UNDER THE UDHR

SANG AND CENTIPLEX Applicants

v

44 Compromis para 23

45 Ibid

-MEMORANDUM for theRESPONDENT-

THE REPUBLIC OF MHUGAN Respondent

ldquoSang and Centiplex (the Applicants) and the Republic of Mhugan (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 Mhuganian means the

Universal Freedom of Expression Court has jurisdiction in this matterrdquo

IN THE UNIVERSAL FREEDOM OF EXPRESSION COURT

THE RESPONDENT MOST HUMBLY AND RESPECTFULLY SUBMITS TO THE

JURISDICTION OF THIS HONrsquoBLE COURT

QUESTIONSPRESENTED

THE FOLLOWING QUESTIONS HAVE BEEN PRESENTED BEFORE THE COURT

FOR ITS DETERMINATION

1 WHETHER THE DAMAGES IMPOSED ON THE APPLICANT ARE CONSISTENT

WITH THE PROVISIONS OF THE UDHR

-MEMORANDUM for theRESPONDENT-

2 WHETHER THE REQUIREMENT TO DISCLOSE THE SOURCE OF THE

RECORDED VOICEMAIL IS CONSISTENT WITH THE PROVISIONS OF THE

UDHR

3 WHETHER THE SECTION OF THE WIRETAP ACT THAT PROVIDES FOR A

SPECIAL PROVISIONAL REMEDY IS CONSISTENT WITH THE UDHR

4 WHETHER THE PROVISIONS OF THE 2013 SEARCH PRIVACY ACT ARE

CONSISTENT WITH THE UDHR

SUMMARYOF ARGUMENTS

A The courts finding imposed damages of 400000 MHD on the Applicant First the

requirement does not infringe the right to freedom of expression of the Applicant Herein

firstly Respondent submits that the impugned requirement does not restrict the right to

freedom of expression and secondly it does not cause a chilling effect Second property

rights under Article 17 are not infringed because the Applicant cannot enjoy his right by

violating ones right under Article 12 The allegation emphasised by the Applicant does not

contribute to public debate as there are no facts substantiating the allegation Third the

-MEMORANDUM for theRESPONDENT-

Respondent possess a reasonable expectation of privacy under Article 12 which has been

violated after the dissemination of the unauthorised information took place In any event the

restriction is permissible under Article 29(2) of the UDHR It is prescribedby law under the

Wiretap Act The situation in Mhugan shows that the Wiretap Act is clearly in pursuit of the

legitimate aims of serves to protect an individualrsquos right from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR The restriction is necessary in a

democratic society as it corresponds to a pressing social need and is proportionate to the

legitimate aims

B The requirement by the court has mandated the Applicant to disclose the identity of

the source of the voicemail and it does not contravene the rights to freedom of expression

enshrined in Article 19 of the UDHR Herein firstly Article 19 does not include the right to

anonymity secondly it does not cause a chilling effect and finally the requirement does

not constitute prior restraint

Further the requirement does notcontravene the right to privacy guaranteed under Article 12

of the UDHR because there is no actual subjective expectation of privacy which is

objectively reasonable Finally theright to remedy enshrined in Article 8 of the UDHR has

not been violated because the Respondent has a right to effective remedy which is possible

only when the Applicant will disclose the name of the source of the information that

infiltrated the voicemailIn any event these measures are valid limitations under Article

29(2) of the UDHR Theysatisfy the three-tiered test of legality legitimacy and necessity

C The requirement by the Court mandated Centiplex to remove the impugned

information from the first page of search result First it does not contravene the right to

expression enshrined in Article 19 of the UDHR Herein firstly the restriction doesnt

impose filtering or prior restraint secondly it does not create a Chilling effect Second the

-MEMORANDUM for theRESPONDENT-

right to privacy guaranteed under Article 12 is violated as it has a superseding effect on

Applicants right guaranteed under Article 19 In any event these measures are valid

limitations under Article 29(2) of the UDHR They satisfy the three-tier test of legality

legitimacy and necessity

D The requirement under the 2013 Search Privacy Act is consistent with the UDHR

First the requirement does not contravene right to privacy enshrined in Article 12 of the

UDHRItexemplifies how in certain circumstances the right to privacy outweighs the right

to freedom of expression Second it does not contravene Article 19 as it complies with the

three-tier test under Article 29(2) The restriction is prescribed by law as it is made under the

authority of the SPA It is pursuant to the legitimate aim of protection of rights of others as

the Respondent possesses a reasonable expectation of privacy Further the restriction is

necessary in ademocratic society as the dissemination does not warrant to a debate of

general interest

ARGUMENTS

A THE DAMAGES IMPOSED ON THE APPLICANT ARE JUST FAIR AND

CONSISTENT WITH THE PROVISIONS OF THE UDHR

1 The courts finding imposed damages of 400000 MHD46 on the Applicant

Respondent submits that this requirement is consistent with the right to freedom of speech

and expression under Article 19 [I] right to property under Article 17 [II] and valid under

46 Compromis para16

-MEMORANDUM for theRESPONDENT-

Article 29(2) [III] Moreover the dissemination was privacy intrusive under Article 12

UDHR [IV]

I The requirement is not a restriction on Article 19 UDHR

2 Article 19 guarantees ldquothe right to freedom of opinion and expression hellip without

interferencehellipthrough any mediardquo47 Respondent submits that the impugned requirement

does not restrict the right to freedom of expression [a] and does not cause a chilling effect

[b]

a) The requirement does not restrict the freedom of expression

3 Notwithstanding the pressrsquo vital ldquowatchdogrdquo role48 journalists cannot be released

from their duty to obey the ordinary law on the basis that Article 19 of the UDHR affords

them protection49 In Stoll v Switzerland the ECtHR held that there is no lsquowholly

unrestricted freedom of expression even with respect to press reporting of matters of serious

public concernrsquo50 The Respondent emphasises the Courtrsquos sentiment that journalistic

ethics51 play a considerably important role lsquogiven the influence wielded by the media in

contemporary societyrsquo52 It is no excuse to say that Sangrsquos duty as a journalist compelled

47 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19 See also International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

48 Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government Ethics(The ANNALS of the American Academy of Political and Social Science1995 )

49Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

50Stoll (n 49) BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR 20 May 1999) 65

51 Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5 October 2013

52Stoll (n 49) 104

-MEMORANDUM for theRESPONDENT-

him to commit an unlawful act53 when in fact this duty could have been discharged through

legal and ethical means54

4 Moreover it is established that ldquonews broadcasting should be based on truthfulness

ensured by the appropriate means of verification and proof and impartiality in

presentation description and narrationrdquo55 Sang clearly did not follow these standards56

Having in mind that ldquoduties and responsibilities which accompany the exercise of the right

tofreedom of expression by media professionals assume special significance in situations

ofconflict and tensionrdquo57 it can be manifestly perceived that Rho had sent the voicemailonly

to let off some steam to his good friend Taur58 which proves prima faciethere was no such

situation prevailing and dissemination does not meet these standards

b) The impugned requirement does not cause a lsquoChilling effectrsquo

5 Ultimately the Respondent reiterates that there is no interference with the freedom

of the press59 Further the damages60 imposed upon Sang do not amount to a form of

censorship61 intended to discourage the press from expressing criticism62 Requirement to

53 Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt accessed 5 October 2013

54 Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013

55 Resolution 1003 (1993) on the ethics of journalism adopted by the Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

56 Compromis para13

57Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

58 Compromis para11

59Freedom of the Press lthttpwwwpuclorgfrom-archivesMediafreedom-presshtmgt accessed 9 October 210360 Compromis para 16

61 Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October 2013

62Stoll (n 49) 154

-MEMORANDUM for theRESPONDENT-

pay damages was merely to discourage journalist for adopting unlawful methods for

obtaining information63 protect right to privacy enshrined under Article 12 UDHR and

public order64 and is wholly proportionate in this instance The safeguard afforded by

freedom of speech in relation to journalistic reporting on issues of general interest is subject

to the journalistacting in good faith and in accordance with the ethics of journalism65

Regardless of the Applicantrsquos misguided beliefs and best intentions his profession is no

source of immunity or impunity66 the road to perdition is paved with bona-fide intentions

II The requirement does not restrict Article 17 UDHR

6 Sang had doubtlessly breached his lsquoduties and responsibilitiesrsquo67 the ethics of

journalism68 and did not act lsquoin good faithrsquo69Besides the information lsquodoes not bear on

matters of general importancersquo70 and its dissemination is an abuse of the pressrsquos ldquowatchdogrdquo

role71To enhance this contention reliance is placed upon three groundsFirst while earlier

63 Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-

codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

64 Public Order lthttpwwwusiporgguiding-principles-stabilization-and-reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October 2013

65Stoll (n 32) 103

66Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) International Court of Justice 14 February 2002

67The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

68BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20 May 1999)

69Pedersen (n 44)

70Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

71Warren(n 49)

-MEMORANDUM for theRESPONDENT-

decisions of the Strasbourg courts tend not to tolerate high damages awards72 none of them

involved the scale of character assassination like in this case73Second spousal abuse74 is a

serious allegation aimed at scandalising Rhorsquos reputation for negative publicity75 purposes

and third such an allegation does not contribute to public debate where there are no facts

substantiating the allegation76

7 Furthermore such an allegation is solely speculative and was coldly calculated to

inflict maximum damage to Rhorsquos reputation77 Rhorsquos loss must be seen in the context of

his negative publicity78 and its impact on his pecuniary loss arising from the protest79 In

addition to that the grief over loss of reputation and honour which was clearly compounded

by the tasteless spousal abuse allegations80 Rho has absolute right to ask for damages since

his right to privacy is in issue and since ldquothe possibility of taking an action under civil law

should be guaranteed to enable a victim to claim possible damages for invasion of

privacyrdquo81 Furthermore the damages are reasonable and does not violate right to enjoyment

of property of the Applicant

72Jersild v Denmark App no 159808 (ECHR 23 September 1994)

73Clarification 10

74Domestic Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt accessed 6 October 2013

75 What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October 2013

76 Compromis para12

77 Compromis para13

78 Clarification 10

79 Compromis para9

80Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June 2007)

81 Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary Assembly of Council of Europe 26 July 1998 Article 14(i)

-MEMORANDUM for theRESPONDENT-

III In any event the requirement is permissible under Article 29(2) UDHR

a) The requirement is prescribed by law

8 Imposing damages on Sang for breach of the Wiretap Act82 is a justified interference

with his freedom of expression The interference in question is validly provided by law and

serves to protect an individualrsquos right to protection from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR

b) The requirement is in pursuance of legitimate aims

9 The ECtHR in Handyside v United Kingdom83 acknowledged that lsquostate authorities

are in principle in a better position than the international judge to give an opinion on the

exact content of these requirements as well as on the necessity of a restriction of a

penaltyrsquo84 Whether a restriction is necessary in the circumstances is therefore an inquiry

based on the facts and circumstances prevailing in the country concerned which the national

authorities are in a better position to undertake85 For the foregoing reasons the requirement

is in pursuance of legitimate aims

c) The restriction is necessary in a democratic society

10 The thrust of the Mhugan courtrsquos reasoning in imposing damages on Sang was

directed at his dissemination of lsquounlawfully obtained materialrsquo86 ie Rhorsquos recorded

82 Compromis para14

83 App no 549372( ECHR 7 December 1976)

84Handyside(n 28) at [48] The Sunday Times (n 8) Joint Dissenting Opinion of Judges Wiarda Cremona Thor Vilhjalmsson Ryssdal Ganshof van der Meersch Sir Gerald Fitzmaurice Bindschedler-Robert Liesh and Matscher

85Case of Klass and Others v Germany App no 502971(EHRR 6 September 1978)

86 Compromis para16

-MEMORANDUM for theRESPONDENT-

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 26: Oxford Respondent

ultimately ruled that Sang had violated the Wiretap Act and awarded statutory damages to

Rho of 400000 MHD In so ruling the court found under Mhuganian law that while the

sourcersquos initial hearing of the voicemail message may have been accidental the subsequent

downloading of the message to hisher computer was intentional and unauthorized under the

Wiretap Act and that furthermore because Sang had recounted on his blog all of the

relevant facts about the circumstances under which the source had acquired the voicemail

message Sang had the knowledge required to be liable under the Act32

11 Centiplex was given the search engine order by the court for disseminating the

contents of the recorded voicemail under the wiretap act and centiplex immediately began to

comply with the order entered against it33 Centiplex made an appearance in Rhorsquos case

against Sang in order to challenge the validity of the search engine order but the court

upheld the order34

12 In the same lawsuit Rho also sued the unknown source of the recorded voicemail

message as a ldquoJohn Doe35rdquo Rho subpoenaed Sang for the identity of that person Sang filed

a motion with the court to quash the subpoena asserting a privilege to hide the identity of

his source36 The court denied the motion to quash as under Mhuganian law the court does

recognize a qualified privilege not to reveal sources but only to ldquoprofessional journalistsrdquo

32 ibid

33 Compromis para1617

34 Ibid

35 Compromis para18

36 Ibid

-MEMORANDUM for theRESPONDENT-

but Sang was not a professional journalist as he did not disseminate the information to the

public for the gain of livelihood as the revenue goes to the CentiplexHowever the court did

grant a stay of the subpoena

2013 SEARCH PRIVACY ACT

13 On May 15 2013 Mhugan enacted the Search Privacy Act which makes it unlawful

for a search engine to sell information about a personrsquos search queries without that personrsquos

consent37

a) For purposes of this Act a ldquosalerdquo is defined to be a ldquotransfer in exchange for

anything of valuerdquo

b) Information is considered to be information ldquoabout a personrsquos search queriesrdquo if

individual search queries are associated with ldquoany identifier including without

limitation a name address phone number email address government identification

number date of birth or IP addressrdquo

c) The Act does not apply to non-sale transfers of such information nor does it apply

to any subsequent transfers of the same information after an initial transfer by the

search engine whether or not those subsequent transfers are sales

d) The Act contains explicit exceptions for disclosures to law enforcement agencies

pursuant to a warrant subpoena or court order and disclosures incident to the

search enginersquos ordinary course of business

e) The Act provides for compensatory or statutory damages at the plaintiffrsquos election

as well as punitive damages for a ldquowillful violationrdquo

f) The Act is scheduled to become effective on May 1 201438

37 Compromis para19

38 ibid

-MEMORANDUM for theRESPONDENT-

14 On May 20 2013 Centiplex sued in Mhugan to have the Search Privacy Act

declared invalid under the laws and Constitution of Mhugan39 But the court held the search

privacy act to be valid40

15 All of the rulings described above were appealed to the Mhugan Supreme Court the

highest appellate court in Mhugan and the Mhugan Supreme Court dismissed all of the

appeals41

16 Sang and Centiplex have challenged all of the following in the Universal Court of

Human Rights42

a) the damages imposed on Sang for disseminating the recorded voicemail

b) the subpoena to Sang to disclose the source of the recorded voicemail

c) the order against Centiplex requiring that webpages that link to the recorded

voicemail including Sangrsquos blog posts never appear on the first page of search

results

d) the validity of the 2013 Search Privacy Act43

39 Compromis para 20

40 Ibid

41 Compromis para21

42 Compromis para 22

43 Ibid

-MEMORANDUM for theRESPONDENT-

17 No law domestic or international restricts either Sangrsquos or Centiplexrsquos standing to

bring these challenges44 Both Sangrsquos and Centiplexrsquos positions have been rejected on the

merits in the domestic courts of Mhugan and all appeals or other legal remedies within the

Mhuganian court system have been exhausted45

STATEMENT OF JURISDICTION

CASE CONCERNING RIGHTS AND OBLIGATIONS UNDER THE UDHR

SANG AND CENTIPLEX Applicants

v

44 Compromis para 23

45 Ibid

-MEMORANDUM for theRESPONDENT-

THE REPUBLIC OF MHUGAN Respondent

ldquoSang and Centiplex (the Applicants) and the Republic of Mhugan (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 Mhuganian means the

Universal Freedom of Expression Court has jurisdiction in this matterrdquo

IN THE UNIVERSAL FREEDOM OF EXPRESSION COURT

THE RESPONDENT MOST HUMBLY AND RESPECTFULLY SUBMITS TO THE

JURISDICTION OF THIS HONrsquoBLE COURT

QUESTIONSPRESENTED

THE FOLLOWING QUESTIONS HAVE BEEN PRESENTED BEFORE THE COURT

FOR ITS DETERMINATION

1 WHETHER THE DAMAGES IMPOSED ON THE APPLICANT ARE CONSISTENT

WITH THE PROVISIONS OF THE UDHR

-MEMORANDUM for theRESPONDENT-

2 WHETHER THE REQUIREMENT TO DISCLOSE THE SOURCE OF THE

RECORDED VOICEMAIL IS CONSISTENT WITH THE PROVISIONS OF THE

UDHR

3 WHETHER THE SECTION OF THE WIRETAP ACT THAT PROVIDES FOR A

SPECIAL PROVISIONAL REMEDY IS CONSISTENT WITH THE UDHR

4 WHETHER THE PROVISIONS OF THE 2013 SEARCH PRIVACY ACT ARE

CONSISTENT WITH THE UDHR

SUMMARYOF ARGUMENTS

A The courts finding imposed damages of 400000 MHD on the Applicant First the

requirement does not infringe the right to freedom of expression of the Applicant Herein

firstly Respondent submits that the impugned requirement does not restrict the right to

freedom of expression and secondly it does not cause a chilling effect Second property

rights under Article 17 are not infringed because the Applicant cannot enjoy his right by

violating ones right under Article 12 The allegation emphasised by the Applicant does not

contribute to public debate as there are no facts substantiating the allegation Third the

-MEMORANDUM for theRESPONDENT-

Respondent possess a reasonable expectation of privacy under Article 12 which has been

violated after the dissemination of the unauthorised information took place In any event the

restriction is permissible under Article 29(2) of the UDHR It is prescribedby law under the

Wiretap Act The situation in Mhugan shows that the Wiretap Act is clearly in pursuit of the

legitimate aims of serves to protect an individualrsquos right from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR The restriction is necessary in a

democratic society as it corresponds to a pressing social need and is proportionate to the

legitimate aims

B The requirement by the court has mandated the Applicant to disclose the identity of

the source of the voicemail and it does not contravene the rights to freedom of expression

enshrined in Article 19 of the UDHR Herein firstly Article 19 does not include the right to

anonymity secondly it does not cause a chilling effect and finally the requirement does

not constitute prior restraint

Further the requirement does notcontravene the right to privacy guaranteed under Article 12

of the UDHR because there is no actual subjective expectation of privacy which is

objectively reasonable Finally theright to remedy enshrined in Article 8 of the UDHR has

not been violated because the Respondent has a right to effective remedy which is possible

only when the Applicant will disclose the name of the source of the information that

infiltrated the voicemailIn any event these measures are valid limitations under Article

29(2) of the UDHR Theysatisfy the three-tiered test of legality legitimacy and necessity

C The requirement by the Court mandated Centiplex to remove the impugned

information from the first page of search result First it does not contravene the right to

expression enshrined in Article 19 of the UDHR Herein firstly the restriction doesnt

impose filtering or prior restraint secondly it does not create a Chilling effect Second the

-MEMORANDUM for theRESPONDENT-

right to privacy guaranteed under Article 12 is violated as it has a superseding effect on

Applicants right guaranteed under Article 19 In any event these measures are valid

limitations under Article 29(2) of the UDHR They satisfy the three-tier test of legality

legitimacy and necessity

D The requirement under the 2013 Search Privacy Act is consistent with the UDHR

First the requirement does not contravene right to privacy enshrined in Article 12 of the

UDHRItexemplifies how in certain circumstances the right to privacy outweighs the right

to freedom of expression Second it does not contravene Article 19 as it complies with the

three-tier test under Article 29(2) The restriction is prescribed by law as it is made under the

authority of the SPA It is pursuant to the legitimate aim of protection of rights of others as

the Respondent possesses a reasonable expectation of privacy Further the restriction is

necessary in ademocratic society as the dissemination does not warrant to a debate of

general interest

ARGUMENTS

A THE DAMAGES IMPOSED ON THE APPLICANT ARE JUST FAIR AND

CONSISTENT WITH THE PROVISIONS OF THE UDHR

1 The courts finding imposed damages of 400000 MHD46 on the Applicant

Respondent submits that this requirement is consistent with the right to freedom of speech

and expression under Article 19 [I] right to property under Article 17 [II] and valid under

46 Compromis para16

-MEMORANDUM for theRESPONDENT-

Article 29(2) [III] Moreover the dissemination was privacy intrusive under Article 12

UDHR [IV]

I The requirement is not a restriction on Article 19 UDHR

2 Article 19 guarantees ldquothe right to freedom of opinion and expression hellip without

interferencehellipthrough any mediardquo47 Respondent submits that the impugned requirement

does not restrict the right to freedom of expression [a] and does not cause a chilling effect

[b]

a) The requirement does not restrict the freedom of expression

3 Notwithstanding the pressrsquo vital ldquowatchdogrdquo role48 journalists cannot be released

from their duty to obey the ordinary law on the basis that Article 19 of the UDHR affords

them protection49 In Stoll v Switzerland the ECtHR held that there is no lsquowholly

unrestricted freedom of expression even with respect to press reporting of matters of serious

public concernrsquo50 The Respondent emphasises the Courtrsquos sentiment that journalistic

ethics51 play a considerably important role lsquogiven the influence wielded by the media in

contemporary societyrsquo52 It is no excuse to say that Sangrsquos duty as a journalist compelled

47 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19 See also International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

48 Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government Ethics(The ANNALS of the American Academy of Political and Social Science1995 )

49Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

50Stoll (n 49) BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR 20 May 1999) 65

51 Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5 October 2013

52Stoll (n 49) 104

-MEMORANDUM for theRESPONDENT-

him to commit an unlawful act53 when in fact this duty could have been discharged through

legal and ethical means54

4 Moreover it is established that ldquonews broadcasting should be based on truthfulness

ensured by the appropriate means of verification and proof and impartiality in

presentation description and narrationrdquo55 Sang clearly did not follow these standards56

Having in mind that ldquoduties and responsibilities which accompany the exercise of the right

tofreedom of expression by media professionals assume special significance in situations

ofconflict and tensionrdquo57 it can be manifestly perceived that Rho had sent the voicemailonly

to let off some steam to his good friend Taur58 which proves prima faciethere was no such

situation prevailing and dissemination does not meet these standards

b) The impugned requirement does not cause a lsquoChilling effectrsquo

5 Ultimately the Respondent reiterates that there is no interference with the freedom

of the press59 Further the damages60 imposed upon Sang do not amount to a form of

censorship61 intended to discourage the press from expressing criticism62 Requirement to

53 Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt accessed 5 October 2013

54 Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013

55 Resolution 1003 (1993) on the ethics of journalism adopted by the Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

56 Compromis para13

57Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

58 Compromis para11

59Freedom of the Press lthttpwwwpuclorgfrom-archivesMediafreedom-presshtmgt accessed 9 October 210360 Compromis para 16

61 Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October 2013

62Stoll (n 49) 154

-MEMORANDUM for theRESPONDENT-

pay damages was merely to discourage journalist for adopting unlawful methods for

obtaining information63 protect right to privacy enshrined under Article 12 UDHR and

public order64 and is wholly proportionate in this instance The safeguard afforded by

freedom of speech in relation to journalistic reporting on issues of general interest is subject

to the journalistacting in good faith and in accordance with the ethics of journalism65

Regardless of the Applicantrsquos misguided beliefs and best intentions his profession is no

source of immunity or impunity66 the road to perdition is paved with bona-fide intentions

II The requirement does not restrict Article 17 UDHR

6 Sang had doubtlessly breached his lsquoduties and responsibilitiesrsquo67 the ethics of

journalism68 and did not act lsquoin good faithrsquo69Besides the information lsquodoes not bear on

matters of general importancersquo70 and its dissemination is an abuse of the pressrsquos ldquowatchdogrdquo

role71To enhance this contention reliance is placed upon three groundsFirst while earlier

63 Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-

codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

64 Public Order lthttpwwwusiporgguiding-principles-stabilization-and-reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October 2013

65Stoll (n 32) 103

66Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) International Court of Justice 14 February 2002

67The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

68BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20 May 1999)

69Pedersen (n 44)

70Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

71Warren(n 49)

-MEMORANDUM for theRESPONDENT-

decisions of the Strasbourg courts tend not to tolerate high damages awards72 none of them

involved the scale of character assassination like in this case73Second spousal abuse74 is a

serious allegation aimed at scandalising Rhorsquos reputation for negative publicity75 purposes

and third such an allegation does not contribute to public debate where there are no facts

substantiating the allegation76

7 Furthermore such an allegation is solely speculative and was coldly calculated to

inflict maximum damage to Rhorsquos reputation77 Rhorsquos loss must be seen in the context of

his negative publicity78 and its impact on his pecuniary loss arising from the protest79 In

addition to that the grief over loss of reputation and honour which was clearly compounded

by the tasteless spousal abuse allegations80 Rho has absolute right to ask for damages since

his right to privacy is in issue and since ldquothe possibility of taking an action under civil law

should be guaranteed to enable a victim to claim possible damages for invasion of

privacyrdquo81 Furthermore the damages are reasonable and does not violate right to enjoyment

of property of the Applicant

72Jersild v Denmark App no 159808 (ECHR 23 September 1994)

73Clarification 10

74Domestic Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt accessed 6 October 2013

75 What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October 2013

76 Compromis para12

77 Compromis para13

78 Clarification 10

79 Compromis para9

80Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June 2007)

81 Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary Assembly of Council of Europe 26 July 1998 Article 14(i)

-MEMORANDUM for theRESPONDENT-

III In any event the requirement is permissible under Article 29(2) UDHR

a) The requirement is prescribed by law

8 Imposing damages on Sang for breach of the Wiretap Act82 is a justified interference

with his freedom of expression The interference in question is validly provided by law and

serves to protect an individualrsquos right to protection from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR

b) The requirement is in pursuance of legitimate aims

9 The ECtHR in Handyside v United Kingdom83 acknowledged that lsquostate authorities

are in principle in a better position than the international judge to give an opinion on the

exact content of these requirements as well as on the necessity of a restriction of a

penaltyrsquo84 Whether a restriction is necessary in the circumstances is therefore an inquiry

based on the facts and circumstances prevailing in the country concerned which the national

authorities are in a better position to undertake85 For the foregoing reasons the requirement

is in pursuance of legitimate aims

c) The restriction is necessary in a democratic society

10 The thrust of the Mhugan courtrsquos reasoning in imposing damages on Sang was

directed at his dissemination of lsquounlawfully obtained materialrsquo86 ie Rhorsquos recorded

82 Compromis para14

83 App no 549372( ECHR 7 December 1976)

84Handyside(n 28) at [48] The Sunday Times (n 8) Joint Dissenting Opinion of Judges Wiarda Cremona Thor Vilhjalmsson Ryssdal Ganshof van der Meersch Sir Gerald Fitzmaurice Bindschedler-Robert Liesh and Matscher

85Case of Klass and Others v Germany App no 502971(EHRR 6 September 1978)

86 Compromis para16

-MEMORANDUM for theRESPONDENT-

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 27: Oxford Respondent

but Sang was not a professional journalist as he did not disseminate the information to the

public for the gain of livelihood as the revenue goes to the CentiplexHowever the court did

grant a stay of the subpoena

2013 SEARCH PRIVACY ACT

13 On May 15 2013 Mhugan enacted the Search Privacy Act which makes it unlawful

for a search engine to sell information about a personrsquos search queries without that personrsquos

consent37

a) For purposes of this Act a ldquosalerdquo is defined to be a ldquotransfer in exchange for

anything of valuerdquo

b) Information is considered to be information ldquoabout a personrsquos search queriesrdquo if

individual search queries are associated with ldquoany identifier including without

limitation a name address phone number email address government identification

number date of birth or IP addressrdquo

c) The Act does not apply to non-sale transfers of such information nor does it apply

to any subsequent transfers of the same information after an initial transfer by the

search engine whether or not those subsequent transfers are sales

d) The Act contains explicit exceptions for disclosures to law enforcement agencies

pursuant to a warrant subpoena or court order and disclosures incident to the

search enginersquos ordinary course of business

e) The Act provides for compensatory or statutory damages at the plaintiffrsquos election

as well as punitive damages for a ldquowillful violationrdquo

f) The Act is scheduled to become effective on May 1 201438

37 Compromis para19

38 ibid

-MEMORANDUM for theRESPONDENT-

14 On May 20 2013 Centiplex sued in Mhugan to have the Search Privacy Act

declared invalid under the laws and Constitution of Mhugan39 But the court held the search

privacy act to be valid40

15 All of the rulings described above were appealed to the Mhugan Supreme Court the

highest appellate court in Mhugan and the Mhugan Supreme Court dismissed all of the

appeals41

16 Sang and Centiplex have challenged all of the following in the Universal Court of

Human Rights42

a) the damages imposed on Sang for disseminating the recorded voicemail

b) the subpoena to Sang to disclose the source of the recorded voicemail

c) the order against Centiplex requiring that webpages that link to the recorded

voicemail including Sangrsquos blog posts never appear on the first page of search

results

d) the validity of the 2013 Search Privacy Act43

39 Compromis para 20

40 Ibid

41 Compromis para21

42 Compromis para 22

43 Ibid

-MEMORANDUM for theRESPONDENT-

17 No law domestic or international restricts either Sangrsquos or Centiplexrsquos standing to

bring these challenges44 Both Sangrsquos and Centiplexrsquos positions have been rejected on the

merits in the domestic courts of Mhugan and all appeals or other legal remedies within the

Mhuganian court system have been exhausted45

STATEMENT OF JURISDICTION

CASE CONCERNING RIGHTS AND OBLIGATIONS UNDER THE UDHR

SANG AND CENTIPLEX Applicants

v

44 Compromis para 23

45 Ibid

-MEMORANDUM for theRESPONDENT-

THE REPUBLIC OF MHUGAN Respondent

ldquoSang and Centiplex (the Applicants) and the Republic of Mhugan (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 Mhuganian means the

Universal Freedom of Expression Court has jurisdiction in this matterrdquo

IN THE UNIVERSAL FREEDOM OF EXPRESSION COURT

THE RESPONDENT MOST HUMBLY AND RESPECTFULLY SUBMITS TO THE

JURISDICTION OF THIS HONrsquoBLE COURT

QUESTIONSPRESENTED

THE FOLLOWING QUESTIONS HAVE BEEN PRESENTED BEFORE THE COURT

FOR ITS DETERMINATION

1 WHETHER THE DAMAGES IMPOSED ON THE APPLICANT ARE CONSISTENT

WITH THE PROVISIONS OF THE UDHR

-MEMORANDUM for theRESPONDENT-

2 WHETHER THE REQUIREMENT TO DISCLOSE THE SOURCE OF THE

RECORDED VOICEMAIL IS CONSISTENT WITH THE PROVISIONS OF THE

UDHR

3 WHETHER THE SECTION OF THE WIRETAP ACT THAT PROVIDES FOR A

SPECIAL PROVISIONAL REMEDY IS CONSISTENT WITH THE UDHR

4 WHETHER THE PROVISIONS OF THE 2013 SEARCH PRIVACY ACT ARE

CONSISTENT WITH THE UDHR

SUMMARYOF ARGUMENTS

A The courts finding imposed damages of 400000 MHD on the Applicant First the

requirement does not infringe the right to freedom of expression of the Applicant Herein

firstly Respondent submits that the impugned requirement does not restrict the right to

freedom of expression and secondly it does not cause a chilling effect Second property

rights under Article 17 are not infringed because the Applicant cannot enjoy his right by

violating ones right under Article 12 The allegation emphasised by the Applicant does not

contribute to public debate as there are no facts substantiating the allegation Third the

-MEMORANDUM for theRESPONDENT-

Respondent possess a reasonable expectation of privacy under Article 12 which has been

violated after the dissemination of the unauthorised information took place In any event the

restriction is permissible under Article 29(2) of the UDHR It is prescribedby law under the

Wiretap Act The situation in Mhugan shows that the Wiretap Act is clearly in pursuit of the

legitimate aims of serves to protect an individualrsquos right from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR The restriction is necessary in a

democratic society as it corresponds to a pressing social need and is proportionate to the

legitimate aims

B The requirement by the court has mandated the Applicant to disclose the identity of

the source of the voicemail and it does not contravene the rights to freedom of expression

enshrined in Article 19 of the UDHR Herein firstly Article 19 does not include the right to

anonymity secondly it does not cause a chilling effect and finally the requirement does

not constitute prior restraint

Further the requirement does notcontravene the right to privacy guaranteed under Article 12

of the UDHR because there is no actual subjective expectation of privacy which is

objectively reasonable Finally theright to remedy enshrined in Article 8 of the UDHR has

not been violated because the Respondent has a right to effective remedy which is possible

only when the Applicant will disclose the name of the source of the information that

infiltrated the voicemailIn any event these measures are valid limitations under Article

29(2) of the UDHR Theysatisfy the three-tiered test of legality legitimacy and necessity

C The requirement by the Court mandated Centiplex to remove the impugned

information from the first page of search result First it does not contravene the right to

expression enshrined in Article 19 of the UDHR Herein firstly the restriction doesnt

impose filtering or prior restraint secondly it does not create a Chilling effect Second the

-MEMORANDUM for theRESPONDENT-

right to privacy guaranteed under Article 12 is violated as it has a superseding effect on

Applicants right guaranteed under Article 19 In any event these measures are valid

limitations under Article 29(2) of the UDHR They satisfy the three-tier test of legality

legitimacy and necessity

D The requirement under the 2013 Search Privacy Act is consistent with the UDHR

First the requirement does not contravene right to privacy enshrined in Article 12 of the

UDHRItexemplifies how in certain circumstances the right to privacy outweighs the right

to freedom of expression Second it does not contravene Article 19 as it complies with the

three-tier test under Article 29(2) The restriction is prescribed by law as it is made under the

authority of the SPA It is pursuant to the legitimate aim of protection of rights of others as

the Respondent possesses a reasonable expectation of privacy Further the restriction is

necessary in ademocratic society as the dissemination does not warrant to a debate of

general interest

ARGUMENTS

A THE DAMAGES IMPOSED ON THE APPLICANT ARE JUST FAIR AND

CONSISTENT WITH THE PROVISIONS OF THE UDHR

1 The courts finding imposed damages of 400000 MHD46 on the Applicant

Respondent submits that this requirement is consistent with the right to freedom of speech

and expression under Article 19 [I] right to property under Article 17 [II] and valid under

46 Compromis para16

-MEMORANDUM for theRESPONDENT-

Article 29(2) [III] Moreover the dissemination was privacy intrusive under Article 12

UDHR [IV]

I The requirement is not a restriction on Article 19 UDHR

2 Article 19 guarantees ldquothe right to freedom of opinion and expression hellip without

interferencehellipthrough any mediardquo47 Respondent submits that the impugned requirement

does not restrict the right to freedom of expression [a] and does not cause a chilling effect

[b]

a) The requirement does not restrict the freedom of expression

3 Notwithstanding the pressrsquo vital ldquowatchdogrdquo role48 journalists cannot be released

from their duty to obey the ordinary law on the basis that Article 19 of the UDHR affords

them protection49 In Stoll v Switzerland the ECtHR held that there is no lsquowholly

unrestricted freedom of expression even with respect to press reporting of matters of serious

public concernrsquo50 The Respondent emphasises the Courtrsquos sentiment that journalistic

ethics51 play a considerably important role lsquogiven the influence wielded by the media in

contemporary societyrsquo52 It is no excuse to say that Sangrsquos duty as a journalist compelled

47 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19 See also International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

48 Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government Ethics(The ANNALS of the American Academy of Political and Social Science1995 )

49Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

50Stoll (n 49) BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR 20 May 1999) 65

51 Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5 October 2013

52Stoll (n 49) 104

-MEMORANDUM for theRESPONDENT-

him to commit an unlawful act53 when in fact this duty could have been discharged through

legal and ethical means54

4 Moreover it is established that ldquonews broadcasting should be based on truthfulness

ensured by the appropriate means of verification and proof and impartiality in

presentation description and narrationrdquo55 Sang clearly did not follow these standards56

Having in mind that ldquoduties and responsibilities which accompany the exercise of the right

tofreedom of expression by media professionals assume special significance in situations

ofconflict and tensionrdquo57 it can be manifestly perceived that Rho had sent the voicemailonly

to let off some steam to his good friend Taur58 which proves prima faciethere was no such

situation prevailing and dissemination does not meet these standards

b) The impugned requirement does not cause a lsquoChilling effectrsquo

5 Ultimately the Respondent reiterates that there is no interference with the freedom

of the press59 Further the damages60 imposed upon Sang do not amount to a form of

censorship61 intended to discourage the press from expressing criticism62 Requirement to

53 Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt accessed 5 October 2013

54 Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013

55 Resolution 1003 (1993) on the ethics of journalism adopted by the Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

56 Compromis para13

57Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

58 Compromis para11

59Freedom of the Press lthttpwwwpuclorgfrom-archivesMediafreedom-presshtmgt accessed 9 October 210360 Compromis para 16

61 Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October 2013

62Stoll (n 49) 154

-MEMORANDUM for theRESPONDENT-

pay damages was merely to discourage journalist for adopting unlawful methods for

obtaining information63 protect right to privacy enshrined under Article 12 UDHR and

public order64 and is wholly proportionate in this instance The safeguard afforded by

freedom of speech in relation to journalistic reporting on issues of general interest is subject

to the journalistacting in good faith and in accordance with the ethics of journalism65

Regardless of the Applicantrsquos misguided beliefs and best intentions his profession is no

source of immunity or impunity66 the road to perdition is paved with bona-fide intentions

II The requirement does not restrict Article 17 UDHR

6 Sang had doubtlessly breached his lsquoduties and responsibilitiesrsquo67 the ethics of

journalism68 and did not act lsquoin good faithrsquo69Besides the information lsquodoes not bear on

matters of general importancersquo70 and its dissemination is an abuse of the pressrsquos ldquowatchdogrdquo

role71To enhance this contention reliance is placed upon three groundsFirst while earlier

63 Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-

codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

64 Public Order lthttpwwwusiporgguiding-principles-stabilization-and-reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October 2013

65Stoll (n 32) 103

66Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) International Court of Justice 14 February 2002

67The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

68BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20 May 1999)

69Pedersen (n 44)

70Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

71Warren(n 49)

-MEMORANDUM for theRESPONDENT-

decisions of the Strasbourg courts tend not to tolerate high damages awards72 none of them

involved the scale of character assassination like in this case73Second spousal abuse74 is a

serious allegation aimed at scandalising Rhorsquos reputation for negative publicity75 purposes

and third such an allegation does not contribute to public debate where there are no facts

substantiating the allegation76

7 Furthermore such an allegation is solely speculative and was coldly calculated to

inflict maximum damage to Rhorsquos reputation77 Rhorsquos loss must be seen in the context of

his negative publicity78 and its impact on his pecuniary loss arising from the protest79 In

addition to that the grief over loss of reputation and honour which was clearly compounded

by the tasteless spousal abuse allegations80 Rho has absolute right to ask for damages since

his right to privacy is in issue and since ldquothe possibility of taking an action under civil law

should be guaranteed to enable a victim to claim possible damages for invasion of

privacyrdquo81 Furthermore the damages are reasonable and does not violate right to enjoyment

of property of the Applicant

72Jersild v Denmark App no 159808 (ECHR 23 September 1994)

73Clarification 10

74Domestic Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt accessed 6 October 2013

75 What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October 2013

76 Compromis para12

77 Compromis para13

78 Clarification 10

79 Compromis para9

80Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June 2007)

81 Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary Assembly of Council of Europe 26 July 1998 Article 14(i)

-MEMORANDUM for theRESPONDENT-

III In any event the requirement is permissible under Article 29(2) UDHR

a) The requirement is prescribed by law

8 Imposing damages on Sang for breach of the Wiretap Act82 is a justified interference

with his freedom of expression The interference in question is validly provided by law and

serves to protect an individualrsquos right to protection from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR

b) The requirement is in pursuance of legitimate aims

9 The ECtHR in Handyside v United Kingdom83 acknowledged that lsquostate authorities

are in principle in a better position than the international judge to give an opinion on the

exact content of these requirements as well as on the necessity of a restriction of a

penaltyrsquo84 Whether a restriction is necessary in the circumstances is therefore an inquiry

based on the facts and circumstances prevailing in the country concerned which the national

authorities are in a better position to undertake85 For the foregoing reasons the requirement

is in pursuance of legitimate aims

c) The restriction is necessary in a democratic society

10 The thrust of the Mhugan courtrsquos reasoning in imposing damages on Sang was

directed at his dissemination of lsquounlawfully obtained materialrsquo86 ie Rhorsquos recorded

82 Compromis para14

83 App no 549372( ECHR 7 December 1976)

84Handyside(n 28) at [48] The Sunday Times (n 8) Joint Dissenting Opinion of Judges Wiarda Cremona Thor Vilhjalmsson Ryssdal Ganshof van der Meersch Sir Gerald Fitzmaurice Bindschedler-Robert Liesh and Matscher

85Case of Klass and Others v Germany App no 502971(EHRR 6 September 1978)

86 Compromis para16

-MEMORANDUM for theRESPONDENT-

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 28: Oxford Respondent

14 On May 20 2013 Centiplex sued in Mhugan to have the Search Privacy Act

declared invalid under the laws and Constitution of Mhugan39 But the court held the search

privacy act to be valid40

15 All of the rulings described above were appealed to the Mhugan Supreme Court the

highest appellate court in Mhugan and the Mhugan Supreme Court dismissed all of the

appeals41

16 Sang and Centiplex have challenged all of the following in the Universal Court of

Human Rights42

a) the damages imposed on Sang for disseminating the recorded voicemail

b) the subpoena to Sang to disclose the source of the recorded voicemail

c) the order against Centiplex requiring that webpages that link to the recorded

voicemail including Sangrsquos blog posts never appear on the first page of search

results

d) the validity of the 2013 Search Privacy Act43

39 Compromis para 20

40 Ibid

41 Compromis para21

42 Compromis para 22

43 Ibid

-MEMORANDUM for theRESPONDENT-

17 No law domestic or international restricts either Sangrsquos or Centiplexrsquos standing to

bring these challenges44 Both Sangrsquos and Centiplexrsquos positions have been rejected on the

merits in the domestic courts of Mhugan and all appeals or other legal remedies within the

Mhuganian court system have been exhausted45

STATEMENT OF JURISDICTION

CASE CONCERNING RIGHTS AND OBLIGATIONS UNDER THE UDHR

SANG AND CENTIPLEX Applicants

v

44 Compromis para 23

45 Ibid

-MEMORANDUM for theRESPONDENT-

THE REPUBLIC OF MHUGAN Respondent

ldquoSang and Centiplex (the Applicants) and the Republic of Mhugan (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 Mhuganian means the

Universal Freedom of Expression Court has jurisdiction in this matterrdquo

IN THE UNIVERSAL FREEDOM OF EXPRESSION COURT

THE RESPONDENT MOST HUMBLY AND RESPECTFULLY SUBMITS TO THE

JURISDICTION OF THIS HONrsquoBLE COURT

QUESTIONSPRESENTED

THE FOLLOWING QUESTIONS HAVE BEEN PRESENTED BEFORE THE COURT

FOR ITS DETERMINATION

1 WHETHER THE DAMAGES IMPOSED ON THE APPLICANT ARE CONSISTENT

WITH THE PROVISIONS OF THE UDHR

-MEMORANDUM for theRESPONDENT-

2 WHETHER THE REQUIREMENT TO DISCLOSE THE SOURCE OF THE

RECORDED VOICEMAIL IS CONSISTENT WITH THE PROVISIONS OF THE

UDHR

3 WHETHER THE SECTION OF THE WIRETAP ACT THAT PROVIDES FOR A

SPECIAL PROVISIONAL REMEDY IS CONSISTENT WITH THE UDHR

4 WHETHER THE PROVISIONS OF THE 2013 SEARCH PRIVACY ACT ARE

CONSISTENT WITH THE UDHR

SUMMARYOF ARGUMENTS

A The courts finding imposed damages of 400000 MHD on the Applicant First the

requirement does not infringe the right to freedom of expression of the Applicant Herein

firstly Respondent submits that the impugned requirement does not restrict the right to

freedom of expression and secondly it does not cause a chilling effect Second property

rights under Article 17 are not infringed because the Applicant cannot enjoy his right by

violating ones right under Article 12 The allegation emphasised by the Applicant does not

contribute to public debate as there are no facts substantiating the allegation Third the

-MEMORANDUM for theRESPONDENT-

Respondent possess a reasonable expectation of privacy under Article 12 which has been

violated after the dissemination of the unauthorised information took place In any event the

restriction is permissible under Article 29(2) of the UDHR It is prescribedby law under the

Wiretap Act The situation in Mhugan shows that the Wiretap Act is clearly in pursuit of the

legitimate aims of serves to protect an individualrsquos right from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR The restriction is necessary in a

democratic society as it corresponds to a pressing social need and is proportionate to the

legitimate aims

B The requirement by the court has mandated the Applicant to disclose the identity of

the source of the voicemail and it does not contravene the rights to freedom of expression

enshrined in Article 19 of the UDHR Herein firstly Article 19 does not include the right to

anonymity secondly it does not cause a chilling effect and finally the requirement does

not constitute prior restraint

Further the requirement does notcontravene the right to privacy guaranteed under Article 12

of the UDHR because there is no actual subjective expectation of privacy which is

objectively reasonable Finally theright to remedy enshrined in Article 8 of the UDHR has

not been violated because the Respondent has a right to effective remedy which is possible

only when the Applicant will disclose the name of the source of the information that

infiltrated the voicemailIn any event these measures are valid limitations under Article

29(2) of the UDHR Theysatisfy the three-tiered test of legality legitimacy and necessity

C The requirement by the Court mandated Centiplex to remove the impugned

information from the first page of search result First it does not contravene the right to

expression enshrined in Article 19 of the UDHR Herein firstly the restriction doesnt

impose filtering or prior restraint secondly it does not create a Chilling effect Second the

-MEMORANDUM for theRESPONDENT-

right to privacy guaranteed under Article 12 is violated as it has a superseding effect on

Applicants right guaranteed under Article 19 In any event these measures are valid

limitations under Article 29(2) of the UDHR They satisfy the three-tier test of legality

legitimacy and necessity

D The requirement under the 2013 Search Privacy Act is consistent with the UDHR

First the requirement does not contravene right to privacy enshrined in Article 12 of the

UDHRItexemplifies how in certain circumstances the right to privacy outweighs the right

to freedom of expression Second it does not contravene Article 19 as it complies with the

three-tier test under Article 29(2) The restriction is prescribed by law as it is made under the

authority of the SPA It is pursuant to the legitimate aim of protection of rights of others as

the Respondent possesses a reasonable expectation of privacy Further the restriction is

necessary in ademocratic society as the dissemination does not warrant to a debate of

general interest

ARGUMENTS

A THE DAMAGES IMPOSED ON THE APPLICANT ARE JUST FAIR AND

CONSISTENT WITH THE PROVISIONS OF THE UDHR

1 The courts finding imposed damages of 400000 MHD46 on the Applicant

Respondent submits that this requirement is consistent with the right to freedom of speech

and expression under Article 19 [I] right to property under Article 17 [II] and valid under

46 Compromis para16

-MEMORANDUM for theRESPONDENT-

Article 29(2) [III] Moreover the dissemination was privacy intrusive under Article 12

UDHR [IV]

I The requirement is not a restriction on Article 19 UDHR

2 Article 19 guarantees ldquothe right to freedom of opinion and expression hellip without

interferencehellipthrough any mediardquo47 Respondent submits that the impugned requirement

does not restrict the right to freedom of expression [a] and does not cause a chilling effect

[b]

a) The requirement does not restrict the freedom of expression

3 Notwithstanding the pressrsquo vital ldquowatchdogrdquo role48 journalists cannot be released

from their duty to obey the ordinary law on the basis that Article 19 of the UDHR affords

them protection49 In Stoll v Switzerland the ECtHR held that there is no lsquowholly

unrestricted freedom of expression even with respect to press reporting of matters of serious

public concernrsquo50 The Respondent emphasises the Courtrsquos sentiment that journalistic

ethics51 play a considerably important role lsquogiven the influence wielded by the media in

contemporary societyrsquo52 It is no excuse to say that Sangrsquos duty as a journalist compelled

47 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19 See also International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

48 Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government Ethics(The ANNALS of the American Academy of Political and Social Science1995 )

49Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

50Stoll (n 49) BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR 20 May 1999) 65

51 Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5 October 2013

52Stoll (n 49) 104

-MEMORANDUM for theRESPONDENT-

him to commit an unlawful act53 when in fact this duty could have been discharged through

legal and ethical means54

4 Moreover it is established that ldquonews broadcasting should be based on truthfulness

ensured by the appropriate means of verification and proof and impartiality in

presentation description and narrationrdquo55 Sang clearly did not follow these standards56

Having in mind that ldquoduties and responsibilities which accompany the exercise of the right

tofreedom of expression by media professionals assume special significance in situations

ofconflict and tensionrdquo57 it can be manifestly perceived that Rho had sent the voicemailonly

to let off some steam to his good friend Taur58 which proves prima faciethere was no such

situation prevailing and dissemination does not meet these standards

b) The impugned requirement does not cause a lsquoChilling effectrsquo

5 Ultimately the Respondent reiterates that there is no interference with the freedom

of the press59 Further the damages60 imposed upon Sang do not amount to a form of

censorship61 intended to discourage the press from expressing criticism62 Requirement to

53 Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt accessed 5 October 2013

54 Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013

55 Resolution 1003 (1993) on the ethics of journalism adopted by the Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

56 Compromis para13

57Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

58 Compromis para11

59Freedom of the Press lthttpwwwpuclorgfrom-archivesMediafreedom-presshtmgt accessed 9 October 210360 Compromis para 16

61 Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October 2013

62Stoll (n 49) 154

-MEMORANDUM for theRESPONDENT-

pay damages was merely to discourage journalist for adopting unlawful methods for

obtaining information63 protect right to privacy enshrined under Article 12 UDHR and

public order64 and is wholly proportionate in this instance The safeguard afforded by

freedom of speech in relation to journalistic reporting on issues of general interest is subject

to the journalistacting in good faith and in accordance with the ethics of journalism65

Regardless of the Applicantrsquos misguided beliefs and best intentions his profession is no

source of immunity or impunity66 the road to perdition is paved with bona-fide intentions

II The requirement does not restrict Article 17 UDHR

6 Sang had doubtlessly breached his lsquoduties and responsibilitiesrsquo67 the ethics of

journalism68 and did not act lsquoin good faithrsquo69Besides the information lsquodoes not bear on

matters of general importancersquo70 and its dissemination is an abuse of the pressrsquos ldquowatchdogrdquo

role71To enhance this contention reliance is placed upon three groundsFirst while earlier

63 Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-

codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

64 Public Order lthttpwwwusiporgguiding-principles-stabilization-and-reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October 2013

65Stoll (n 32) 103

66Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) International Court of Justice 14 February 2002

67The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

68BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20 May 1999)

69Pedersen (n 44)

70Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

71Warren(n 49)

-MEMORANDUM for theRESPONDENT-

decisions of the Strasbourg courts tend not to tolerate high damages awards72 none of them

involved the scale of character assassination like in this case73Second spousal abuse74 is a

serious allegation aimed at scandalising Rhorsquos reputation for negative publicity75 purposes

and third such an allegation does not contribute to public debate where there are no facts

substantiating the allegation76

7 Furthermore such an allegation is solely speculative and was coldly calculated to

inflict maximum damage to Rhorsquos reputation77 Rhorsquos loss must be seen in the context of

his negative publicity78 and its impact on his pecuniary loss arising from the protest79 In

addition to that the grief over loss of reputation and honour which was clearly compounded

by the tasteless spousal abuse allegations80 Rho has absolute right to ask for damages since

his right to privacy is in issue and since ldquothe possibility of taking an action under civil law

should be guaranteed to enable a victim to claim possible damages for invasion of

privacyrdquo81 Furthermore the damages are reasonable and does not violate right to enjoyment

of property of the Applicant

72Jersild v Denmark App no 159808 (ECHR 23 September 1994)

73Clarification 10

74Domestic Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt accessed 6 October 2013

75 What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October 2013

76 Compromis para12

77 Compromis para13

78 Clarification 10

79 Compromis para9

80Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June 2007)

81 Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary Assembly of Council of Europe 26 July 1998 Article 14(i)

-MEMORANDUM for theRESPONDENT-

III In any event the requirement is permissible under Article 29(2) UDHR

a) The requirement is prescribed by law

8 Imposing damages on Sang for breach of the Wiretap Act82 is a justified interference

with his freedom of expression The interference in question is validly provided by law and

serves to protect an individualrsquos right to protection from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR

b) The requirement is in pursuance of legitimate aims

9 The ECtHR in Handyside v United Kingdom83 acknowledged that lsquostate authorities

are in principle in a better position than the international judge to give an opinion on the

exact content of these requirements as well as on the necessity of a restriction of a

penaltyrsquo84 Whether a restriction is necessary in the circumstances is therefore an inquiry

based on the facts and circumstances prevailing in the country concerned which the national

authorities are in a better position to undertake85 For the foregoing reasons the requirement

is in pursuance of legitimate aims

c) The restriction is necessary in a democratic society

10 The thrust of the Mhugan courtrsquos reasoning in imposing damages on Sang was

directed at his dissemination of lsquounlawfully obtained materialrsquo86 ie Rhorsquos recorded

82 Compromis para14

83 App no 549372( ECHR 7 December 1976)

84Handyside(n 28) at [48] The Sunday Times (n 8) Joint Dissenting Opinion of Judges Wiarda Cremona Thor Vilhjalmsson Ryssdal Ganshof van der Meersch Sir Gerald Fitzmaurice Bindschedler-Robert Liesh and Matscher

85Case of Klass and Others v Germany App no 502971(EHRR 6 September 1978)

86 Compromis para16

-MEMORANDUM for theRESPONDENT-

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 29: Oxford Respondent

17 No law domestic or international restricts either Sangrsquos or Centiplexrsquos standing to

bring these challenges44 Both Sangrsquos and Centiplexrsquos positions have been rejected on the

merits in the domestic courts of Mhugan and all appeals or other legal remedies within the

Mhuganian court system have been exhausted45

STATEMENT OF JURISDICTION

CASE CONCERNING RIGHTS AND OBLIGATIONS UNDER THE UDHR

SANG AND CENTIPLEX Applicants

v

44 Compromis para 23

45 Ibid

-MEMORANDUM for theRESPONDENT-

THE REPUBLIC OF MHUGAN Respondent

ldquoSang and Centiplex (the Applicants) and the Republic of Mhugan (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 Mhuganian means the

Universal Freedom of Expression Court has jurisdiction in this matterrdquo

IN THE UNIVERSAL FREEDOM OF EXPRESSION COURT

THE RESPONDENT MOST HUMBLY AND RESPECTFULLY SUBMITS TO THE

JURISDICTION OF THIS HONrsquoBLE COURT

QUESTIONSPRESENTED

THE FOLLOWING QUESTIONS HAVE BEEN PRESENTED BEFORE THE COURT

FOR ITS DETERMINATION

1 WHETHER THE DAMAGES IMPOSED ON THE APPLICANT ARE CONSISTENT

WITH THE PROVISIONS OF THE UDHR

-MEMORANDUM for theRESPONDENT-

2 WHETHER THE REQUIREMENT TO DISCLOSE THE SOURCE OF THE

RECORDED VOICEMAIL IS CONSISTENT WITH THE PROVISIONS OF THE

UDHR

3 WHETHER THE SECTION OF THE WIRETAP ACT THAT PROVIDES FOR A

SPECIAL PROVISIONAL REMEDY IS CONSISTENT WITH THE UDHR

4 WHETHER THE PROVISIONS OF THE 2013 SEARCH PRIVACY ACT ARE

CONSISTENT WITH THE UDHR

SUMMARYOF ARGUMENTS

A The courts finding imposed damages of 400000 MHD on the Applicant First the

requirement does not infringe the right to freedom of expression of the Applicant Herein

firstly Respondent submits that the impugned requirement does not restrict the right to

freedom of expression and secondly it does not cause a chilling effect Second property

rights under Article 17 are not infringed because the Applicant cannot enjoy his right by

violating ones right under Article 12 The allegation emphasised by the Applicant does not

contribute to public debate as there are no facts substantiating the allegation Third the

-MEMORANDUM for theRESPONDENT-

Respondent possess a reasonable expectation of privacy under Article 12 which has been

violated after the dissemination of the unauthorised information took place In any event the

restriction is permissible under Article 29(2) of the UDHR It is prescribedby law under the

Wiretap Act The situation in Mhugan shows that the Wiretap Act is clearly in pursuit of the

legitimate aims of serves to protect an individualrsquos right from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR The restriction is necessary in a

democratic society as it corresponds to a pressing social need and is proportionate to the

legitimate aims

B The requirement by the court has mandated the Applicant to disclose the identity of

the source of the voicemail and it does not contravene the rights to freedom of expression

enshrined in Article 19 of the UDHR Herein firstly Article 19 does not include the right to

anonymity secondly it does not cause a chilling effect and finally the requirement does

not constitute prior restraint

Further the requirement does notcontravene the right to privacy guaranteed under Article 12

of the UDHR because there is no actual subjective expectation of privacy which is

objectively reasonable Finally theright to remedy enshrined in Article 8 of the UDHR has

not been violated because the Respondent has a right to effective remedy which is possible

only when the Applicant will disclose the name of the source of the information that

infiltrated the voicemailIn any event these measures are valid limitations under Article

29(2) of the UDHR Theysatisfy the three-tiered test of legality legitimacy and necessity

C The requirement by the Court mandated Centiplex to remove the impugned

information from the first page of search result First it does not contravene the right to

expression enshrined in Article 19 of the UDHR Herein firstly the restriction doesnt

impose filtering or prior restraint secondly it does not create a Chilling effect Second the

-MEMORANDUM for theRESPONDENT-

right to privacy guaranteed under Article 12 is violated as it has a superseding effect on

Applicants right guaranteed under Article 19 In any event these measures are valid

limitations under Article 29(2) of the UDHR They satisfy the three-tier test of legality

legitimacy and necessity

D The requirement under the 2013 Search Privacy Act is consistent with the UDHR

First the requirement does not contravene right to privacy enshrined in Article 12 of the

UDHRItexemplifies how in certain circumstances the right to privacy outweighs the right

to freedom of expression Second it does not contravene Article 19 as it complies with the

three-tier test under Article 29(2) The restriction is prescribed by law as it is made under the

authority of the SPA It is pursuant to the legitimate aim of protection of rights of others as

the Respondent possesses a reasonable expectation of privacy Further the restriction is

necessary in ademocratic society as the dissemination does not warrant to a debate of

general interest

ARGUMENTS

A THE DAMAGES IMPOSED ON THE APPLICANT ARE JUST FAIR AND

CONSISTENT WITH THE PROVISIONS OF THE UDHR

1 The courts finding imposed damages of 400000 MHD46 on the Applicant

Respondent submits that this requirement is consistent with the right to freedom of speech

and expression under Article 19 [I] right to property under Article 17 [II] and valid under

46 Compromis para16

-MEMORANDUM for theRESPONDENT-

Article 29(2) [III] Moreover the dissemination was privacy intrusive under Article 12

UDHR [IV]

I The requirement is not a restriction on Article 19 UDHR

2 Article 19 guarantees ldquothe right to freedom of opinion and expression hellip without

interferencehellipthrough any mediardquo47 Respondent submits that the impugned requirement

does not restrict the right to freedom of expression [a] and does not cause a chilling effect

[b]

a) The requirement does not restrict the freedom of expression

3 Notwithstanding the pressrsquo vital ldquowatchdogrdquo role48 journalists cannot be released

from their duty to obey the ordinary law on the basis that Article 19 of the UDHR affords

them protection49 In Stoll v Switzerland the ECtHR held that there is no lsquowholly

unrestricted freedom of expression even with respect to press reporting of matters of serious

public concernrsquo50 The Respondent emphasises the Courtrsquos sentiment that journalistic

ethics51 play a considerably important role lsquogiven the influence wielded by the media in

contemporary societyrsquo52 It is no excuse to say that Sangrsquos duty as a journalist compelled

47 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19 See also International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

48 Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government Ethics(The ANNALS of the American Academy of Political and Social Science1995 )

49Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

50Stoll (n 49) BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR 20 May 1999) 65

51 Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5 October 2013

52Stoll (n 49) 104

-MEMORANDUM for theRESPONDENT-

him to commit an unlawful act53 when in fact this duty could have been discharged through

legal and ethical means54

4 Moreover it is established that ldquonews broadcasting should be based on truthfulness

ensured by the appropriate means of verification and proof and impartiality in

presentation description and narrationrdquo55 Sang clearly did not follow these standards56

Having in mind that ldquoduties and responsibilities which accompany the exercise of the right

tofreedom of expression by media professionals assume special significance in situations

ofconflict and tensionrdquo57 it can be manifestly perceived that Rho had sent the voicemailonly

to let off some steam to his good friend Taur58 which proves prima faciethere was no such

situation prevailing and dissemination does not meet these standards

b) The impugned requirement does not cause a lsquoChilling effectrsquo

5 Ultimately the Respondent reiterates that there is no interference with the freedom

of the press59 Further the damages60 imposed upon Sang do not amount to a form of

censorship61 intended to discourage the press from expressing criticism62 Requirement to

53 Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt accessed 5 October 2013

54 Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013

55 Resolution 1003 (1993) on the ethics of journalism adopted by the Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

56 Compromis para13

57Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

58 Compromis para11

59Freedom of the Press lthttpwwwpuclorgfrom-archivesMediafreedom-presshtmgt accessed 9 October 210360 Compromis para 16

61 Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October 2013

62Stoll (n 49) 154

-MEMORANDUM for theRESPONDENT-

pay damages was merely to discourage journalist for adopting unlawful methods for

obtaining information63 protect right to privacy enshrined under Article 12 UDHR and

public order64 and is wholly proportionate in this instance The safeguard afforded by

freedom of speech in relation to journalistic reporting on issues of general interest is subject

to the journalistacting in good faith and in accordance with the ethics of journalism65

Regardless of the Applicantrsquos misguided beliefs and best intentions his profession is no

source of immunity or impunity66 the road to perdition is paved with bona-fide intentions

II The requirement does not restrict Article 17 UDHR

6 Sang had doubtlessly breached his lsquoduties and responsibilitiesrsquo67 the ethics of

journalism68 and did not act lsquoin good faithrsquo69Besides the information lsquodoes not bear on

matters of general importancersquo70 and its dissemination is an abuse of the pressrsquos ldquowatchdogrdquo

role71To enhance this contention reliance is placed upon three groundsFirst while earlier

63 Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-

codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

64 Public Order lthttpwwwusiporgguiding-principles-stabilization-and-reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October 2013

65Stoll (n 32) 103

66Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) International Court of Justice 14 February 2002

67The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

68BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20 May 1999)

69Pedersen (n 44)

70Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

71Warren(n 49)

-MEMORANDUM for theRESPONDENT-

decisions of the Strasbourg courts tend not to tolerate high damages awards72 none of them

involved the scale of character assassination like in this case73Second spousal abuse74 is a

serious allegation aimed at scandalising Rhorsquos reputation for negative publicity75 purposes

and third such an allegation does not contribute to public debate where there are no facts

substantiating the allegation76

7 Furthermore such an allegation is solely speculative and was coldly calculated to

inflict maximum damage to Rhorsquos reputation77 Rhorsquos loss must be seen in the context of

his negative publicity78 and its impact on his pecuniary loss arising from the protest79 In

addition to that the grief over loss of reputation and honour which was clearly compounded

by the tasteless spousal abuse allegations80 Rho has absolute right to ask for damages since

his right to privacy is in issue and since ldquothe possibility of taking an action under civil law

should be guaranteed to enable a victim to claim possible damages for invasion of

privacyrdquo81 Furthermore the damages are reasonable and does not violate right to enjoyment

of property of the Applicant

72Jersild v Denmark App no 159808 (ECHR 23 September 1994)

73Clarification 10

74Domestic Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt accessed 6 October 2013

75 What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October 2013

76 Compromis para12

77 Compromis para13

78 Clarification 10

79 Compromis para9

80Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June 2007)

81 Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary Assembly of Council of Europe 26 July 1998 Article 14(i)

-MEMORANDUM for theRESPONDENT-

III In any event the requirement is permissible under Article 29(2) UDHR

a) The requirement is prescribed by law

8 Imposing damages on Sang for breach of the Wiretap Act82 is a justified interference

with his freedom of expression The interference in question is validly provided by law and

serves to protect an individualrsquos right to protection from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR

b) The requirement is in pursuance of legitimate aims

9 The ECtHR in Handyside v United Kingdom83 acknowledged that lsquostate authorities

are in principle in a better position than the international judge to give an opinion on the

exact content of these requirements as well as on the necessity of a restriction of a

penaltyrsquo84 Whether a restriction is necessary in the circumstances is therefore an inquiry

based on the facts and circumstances prevailing in the country concerned which the national

authorities are in a better position to undertake85 For the foregoing reasons the requirement

is in pursuance of legitimate aims

c) The restriction is necessary in a democratic society

10 The thrust of the Mhugan courtrsquos reasoning in imposing damages on Sang was

directed at his dissemination of lsquounlawfully obtained materialrsquo86 ie Rhorsquos recorded

82 Compromis para14

83 App no 549372( ECHR 7 December 1976)

84Handyside(n 28) at [48] The Sunday Times (n 8) Joint Dissenting Opinion of Judges Wiarda Cremona Thor Vilhjalmsson Ryssdal Ganshof van der Meersch Sir Gerald Fitzmaurice Bindschedler-Robert Liesh and Matscher

85Case of Klass and Others v Germany App no 502971(EHRR 6 September 1978)

86 Compromis para16

-MEMORANDUM for theRESPONDENT-

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 30: Oxford Respondent

THE REPUBLIC OF MHUGAN Respondent

ldquoSang and Centiplex (the Applicants) and the Republic of Mhugan (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 Mhuganian means the

Universal Freedom of Expression Court has jurisdiction in this matterrdquo

IN THE UNIVERSAL FREEDOM OF EXPRESSION COURT

THE RESPONDENT MOST HUMBLY AND RESPECTFULLY SUBMITS TO THE

JURISDICTION OF THIS HONrsquoBLE COURT

QUESTIONSPRESENTED

THE FOLLOWING QUESTIONS HAVE BEEN PRESENTED BEFORE THE COURT

FOR ITS DETERMINATION

1 WHETHER THE DAMAGES IMPOSED ON THE APPLICANT ARE CONSISTENT

WITH THE PROVISIONS OF THE UDHR

-MEMORANDUM for theRESPONDENT-

2 WHETHER THE REQUIREMENT TO DISCLOSE THE SOURCE OF THE

RECORDED VOICEMAIL IS CONSISTENT WITH THE PROVISIONS OF THE

UDHR

3 WHETHER THE SECTION OF THE WIRETAP ACT THAT PROVIDES FOR A

SPECIAL PROVISIONAL REMEDY IS CONSISTENT WITH THE UDHR

4 WHETHER THE PROVISIONS OF THE 2013 SEARCH PRIVACY ACT ARE

CONSISTENT WITH THE UDHR

SUMMARYOF ARGUMENTS

A The courts finding imposed damages of 400000 MHD on the Applicant First the

requirement does not infringe the right to freedom of expression of the Applicant Herein

firstly Respondent submits that the impugned requirement does not restrict the right to

freedom of expression and secondly it does not cause a chilling effect Second property

rights under Article 17 are not infringed because the Applicant cannot enjoy his right by

violating ones right under Article 12 The allegation emphasised by the Applicant does not

contribute to public debate as there are no facts substantiating the allegation Third the

-MEMORANDUM for theRESPONDENT-

Respondent possess a reasonable expectation of privacy under Article 12 which has been

violated after the dissemination of the unauthorised information took place In any event the

restriction is permissible under Article 29(2) of the UDHR It is prescribedby law under the

Wiretap Act The situation in Mhugan shows that the Wiretap Act is clearly in pursuit of the

legitimate aims of serves to protect an individualrsquos right from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR The restriction is necessary in a

democratic society as it corresponds to a pressing social need and is proportionate to the

legitimate aims

B The requirement by the court has mandated the Applicant to disclose the identity of

the source of the voicemail and it does not contravene the rights to freedom of expression

enshrined in Article 19 of the UDHR Herein firstly Article 19 does not include the right to

anonymity secondly it does not cause a chilling effect and finally the requirement does

not constitute prior restraint

Further the requirement does notcontravene the right to privacy guaranteed under Article 12

of the UDHR because there is no actual subjective expectation of privacy which is

objectively reasonable Finally theright to remedy enshrined in Article 8 of the UDHR has

not been violated because the Respondent has a right to effective remedy which is possible

only when the Applicant will disclose the name of the source of the information that

infiltrated the voicemailIn any event these measures are valid limitations under Article

29(2) of the UDHR Theysatisfy the three-tiered test of legality legitimacy and necessity

C The requirement by the Court mandated Centiplex to remove the impugned

information from the first page of search result First it does not contravene the right to

expression enshrined in Article 19 of the UDHR Herein firstly the restriction doesnt

impose filtering or prior restraint secondly it does not create a Chilling effect Second the

-MEMORANDUM for theRESPONDENT-

right to privacy guaranteed under Article 12 is violated as it has a superseding effect on

Applicants right guaranteed under Article 19 In any event these measures are valid

limitations under Article 29(2) of the UDHR They satisfy the three-tier test of legality

legitimacy and necessity

D The requirement under the 2013 Search Privacy Act is consistent with the UDHR

First the requirement does not contravene right to privacy enshrined in Article 12 of the

UDHRItexemplifies how in certain circumstances the right to privacy outweighs the right

to freedom of expression Second it does not contravene Article 19 as it complies with the

three-tier test under Article 29(2) The restriction is prescribed by law as it is made under the

authority of the SPA It is pursuant to the legitimate aim of protection of rights of others as

the Respondent possesses a reasonable expectation of privacy Further the restriction is

necessary in ademocratic society as the dissemination does not warrant to a debate of

general interest

ARGUMENTS

A THE DAMAGES IMPOSED ON THE APPLICANT ARE JUST FAIR AND

CONSISTENT WITH THE PROVISIONS OF THE UDHR

1 The courts finding imposed damages of 400000 MHD46 on the Applicant

Respondent submits that this requirement is consistent with the right to freedom of speech

and expression under Article 19 [I] right to property under Article 17 [II] and valid under

46 Compromis para16

-MEMORANDUM for theRESPONDENT-

Article 29(2) [III] Moreover the dissemination was privacy intrusive under Article 12

UDHR [IV]

I The requirement is not a restriction on Article 19 UDHR

2 Article 19 guarantees ldquothe right to freedom of opinion and expression hellip without

interferencehellipthrough any mediardquo47 Respondent submits that the impugned requirement

does not restrict the right to freedom of expression [a] and does not cause a chilling effect

[b]

a) The requirement does not restrict the freedom of expression

3 Notwithstanding the pressrsquo vital ldquowatchdogrdquo role48 journalists cannot be released

from their duty to obey the ordinary law on the basis that Article 19 of the UDHR affords

them protection49 In Stoll v Switzerland the ECtHR held that there is no lsquowholly

unrestricted freedom of expression even with respect to press reporting of matters of serious

public concernrsquo50 The Respondent emphasises the Courtrsquos sentiment that journalistic

ethics51 play a considerably important role lsquogiven the influence wielded by the media in

contemporary societyrsquo52 It is no excuse to say that Sangrsquos duty as a journalist compelled

47 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19 See also International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

48 Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government Ethics(The ANNALS of the American Academy of Political and Social Science1995 )

49Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

50Stoll (n 49) BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR 20 May 1999) 65

51 Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5 October 2013

52Stoll (n 49) 104

-MEMORANDUM for theRESPONDENT-

him to commit an unlawful act53 when in fact this duty could have been discharged through

legal and ethical means54

4 Moreover it is established that ldquonews broadcasting should be based on truthfulness

ensured by the appropriate means of verification and proof and impartiality in

presentation description and narrationrdquo55 Sang clearly did not follow these standards56

Having in mind that ldquoduties and responsibilities which accompany the exercise of the right

tofreedom of expression by media professionals assume special significance in situations

ofconflict and tensionrdquo57 it can be manifestly perceived that Rho had sent the voicemailonly

to let off some steam to his good friend Taur58 which proves prima faciethere was no such

situation prevailing and dissemination does not meet these standards

b) The impugned requirement does not cause a lsquoChilling effectrsquo

5 Ultimately the Respondent reiterates that there is no interference with the freedom

of the press59 Further the damages60 imposed upon Sang do not amount to a form of

censorship61 intended to discourage the press from expressing criticism62 Requirement to

53 Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt accessed 5 October 2013

54 Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013

55 Resolution 1003 (1993) on the ethics of journalism adopted by the Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

56 Compromis para13

57Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

58 Compromis para11

59Freedom of the Press lthttpwwwpuclorgfrom-archivesMediafreedom-presshtmgt accessed 9 October 210360 Compromis para 16

61 Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October 2013

62Stoll (n 49) 154

-MEMORANDUM for theRESPONDENT-

pay damages was merely to discourage journalist for adopting unlawful methods for

obtaining information63 protect right to privacy enshrined under Article 12 UDHR and

public order64 and is wholly proportionate in this instance The safeguard afforded by

freedom of speech in relation to journalistic reporting on issues of general interest is subject

to the journalistacting in good faith and in accordance with the ethics of journalism65

Regardless of the Applicantrsquos misguided beliefs and best intentions his profession is no

source of immunity or impunity66 the road to perdition is paved with bona-fide intentions

II The requirement does not restrict Article 17 UDHR

6 Sang had doubtlessly breached his lsquoduties and responsibilitiesrsquo67 the ethics of

journalism68 and did not act lsquoin good faithrsquo69Besides the information lsquodoes not bear on

matters of general importancersquo70 and its dissemination is an abuse of the pressrsquos ldquowatchdogrdquo

role71To enhance this contention reliance is placed upon three groundsFirst while earlier

63 Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-

codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

64 Public Order lthttpwwwusiporgguiding-principles-stabilization-and-reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October 2013

65Stoll (n 32) 103

66Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) International Court of Justice 14 February 2002

67The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

68BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20 May 1999)

69Pedersen (n 44)

70Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

71Warren(n 49)

-MEMORANDUM for theRESPONDENT-

decisions of the Strasbourg courts tend not to tolerate high damages awards72 none of them

involved the scale of character assassination like in this case73Second spousal abuse74 is a

serious allegation aimed at scandalising Rhorsquos reputation for negative publicity75 purposes

and third such an allegation does not contribute to public debate where there are no facts

substantiating the allegation76

7 Furthermore such an allegation is solely speculative and was coldly calculated to

inflict maximum damage to Rhorsquos reputation77 Rhorsquos loss must be seen in the context of

his negative publicity78 and its impact on his pecuniary loss arising from the protest79 In

addition to that the grief over loss of reputation and honour which was clearly compounded

by the tasteless spousal abuse allegations80 Rho has absolute right to ask for damages since

his right to privacy is in issue and since ldquothe possibility of taking an action under civil law

should be guaranteed to enable a victim to claim possible damages for invasion of

privacyrdquo81 Furthermore the damages are reasonable and does not violate right to enjoyment

of property of the Applicant

72Jersild v Denmark App no 159808 (ECHR 23 September 1994)

73Clarification 10

74Domestic Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt accessed 6 October 2013

75 What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October 2013

76 Compromis para12

77 Compromis para13

78 Clarification 10

79 Compromis para9

80Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June 2007)

81 Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary Assembly of Council of Europe 26 July 1998 Article 14(i)

-MEMORANDUM for theRESPONDENT-

III In any event the requirement is permissible under Article 29(2) UDHR

a) The requirement is prescribed by law

8 Imposing damages on Sang for breach of the Wiretap Act82 is a justified interference

with his freedom of expression The interference in question is validly provided by law and

serves to protect an individualrsquos right to protection from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR

b) The requirement is in pursuance of legitimate aims

9 The ECtHR in Handyside v United Kingdom83 acknowledged that lsquostate authorities

are in principle in a better position than the international judge to give an opinion on the

exact content of these requirements as well as on the necessity of a restriction of a

penaltyrsquo84 Whether a restriction is necessary in the circumstances is therefore an inquiry

based on the facts and circumstances prevailing in the country concerned which the national

authorities are in a better position to undertake85 For the foregoing reasons the requirement

is in pursuance of legitimate aims

c) The restriction is necessary in a democratic society

10 The thrust of the Mhugan courtrsquos reasoning in imposing damages on Sang was

directed at his dissemination of lsquounlawfully obtained materialrsquo86 ie Rhorsquos recorded

82 Compromis para14

83 App no 549372( ECHR 7 December 1976)

84Handyside(n 28) at [48] The Sunday Times (n 8) Joint Dissenting Opinion of Judges Wiarda Cremona Thor Vilhjalmsson Ryssdal Ganshof van der Meersch Sir Gerald Fitzmaurice Bindschedler-Robert Liesh and Matscher

85Case of Klass and Others v Germany App no 502971(EHRR 6 September 1978)

86 Compromis para16

-MEMORANDUM for theRESPONDENT-

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 31: Oxford Respondent

2 WHETHER THE REQUIREMENT TO DISCLOSE THE SOURCE OF THE

RECORDED VOICEMAIL IS CONSISTENT WITH THE PROVISIONS OF THE

UDHR

3 WHETHER THE SECTION OF THE WIRETAP ACT THAT PROVIDES FOR A

SPECIAL PROVISIONAL REMEDY IS CONSISTENT WITH THE UDHR

4 WHETHER THE PROVISIONS OF THE 2013 SEARCH PRIVACY ACT ARE

CONSISTENT WITH THE UDHR

SUMMARYOF ARGUMENTS

A The courts finding imposed damages of 400000 MHD on the Applicant First the

requirement does not infringe the right to freedom of expression of the Applicant Herein

firstly Respondent submits that the impugned requirement does not restrict the right to

freedom of expression and secondly it does not cause a chilling effect Second property

rights under Article 17 are not infringed because the Applicant cannot enjoy his right by

violating ones right under Article 12 The allegation emphasised by the Applicant does not

contribute to public debate as there are no facts substantiating the allegation Third the

-MEMORANDUM for theRESPONDENT-

Respondent possess a reasonable expectation of privacy under Article 12 which has been

violated after the dissemination of the unauthorised information took place In any event the

restriction is permissible under Article 29(2) of the UDHR It is prescribedby law under the

Wiretap Act The situation in Mhugan shows that the Wiretap Act is clearly in pursuit of the

legitimate aims of serves to protect an individualrsquos right from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR The restriction is necessary in a

democratic society as it corresponds to a pressing social need and is proportionate to the

legitimate aims

B The requirement by the court has mandated the Applicant to disclose the identity of

the source of the voicemail and it does not contravene the rights to freedom of expression

enshrined in Article 19 of the UDHR Herein firstly Article 19 does not include the right to

anonymity secondly it does not cause a chilling effect and finally the requirement does

not constitute prior restraint

Further the requirement does notcontravene the right to privacy guaranteed under Article 12

of the UDHR because there is no actual subjective expectation of privacy which is

objectively reasonable Finally theright to remedy enshrined in Article 8 of the UDHR has

not been violated because the Respondent has a right to effective remedy which is possible

only when the Applicant will disclose the name of the source of the information that

infiltrated the voicemailIn any event these measures are valid limitations under Article

29(2) of the UDHR Theysatisfy the three-tiered test of legality legitimacy and necessity

C The requirement by the Court mandated Centiplex to remove the impugned

information from the first page of search result First it does not contravene the right to

expression enshrined in Article 19 of the UDHR Herein firstly the restriction doesnt

impose filtering or prior restraint secondly it does not create a Chilling effect Second the

-MEMORANDUM for theRESPONDENT-

right to privacy guaranteed under Article 12 is violated as it has a superseding effect on

Applicants right guaranteed under Article 19 In any event these measures are valid

limitations under Article 29(2) of the UDHR They satisfy the three-tier test of legality

legitimacy and necessity

D The requirement under the 2013 Search Privacy Act is consistent with the UDHR

First the requirement does not contravene right to privacy enshrined in Article 12 of the

UDHRItexemplifies how in certain circumstances the right to privacy outweighs the right

to freedom of expression Second it does not contravene Article 19 as it complies with the

three-tier test under Article 29(2) The restriction is prescribed by law as it is made under the

authority of the SPA It is pursuant to the legitimate aim of protection of rights of others as

the Respondent possesses a reasonable expectation of privacy Further the restriction is

necessary in ademocratic society as the dissemination does not warrant to a debate of

general interest

ARGUMENTS

A THE DAMAGES IMPOSED ON THE APPLICANT ARE JUST FAIR AND

CONSISTENT WITH THE PROVISIONS OF THE UDHR

1 The courts finding imposed damages of 400000 MHD46 on the Applicant

Respondent submits that this requirement is consistent with the right to freedom of speech

and expression under Article 19 [I] right to property under Article 17 [II] and valid under

46 Compromis para16

-MEMORANDUM for theRESPONDENT-

Article 29(2) [III] Moreover the dissemination was privacy intrusive under Article 12

UDHR [IV]

I The requirement is not a restriction on Article 19 UDHR

2 Article 19 guarantees ldquothe right to freedom of opinion and expression hellip without

interferencehellipthrough any mediardquo47 Respondent submits that the impugned requirement

does not restrict the right to freedom of expression [a] and does not cause a chilling effect

[b]

a) The requirement does not restrict the freedom of expression

3 Notwithstanding the pressrsquo vital ldquowatchdogrdquo role48 journalists cannot be released

from their duty to obey the ordinary law on the basis that Article 19 of the UDHR affords

them protection49 In Stoll v Switzerland the ECtHR held that there is no lsquowholly

unrestricted freedom of expression even with respect to press reporting of matters of serious

public concernrsquo50 The Respondent emphasises the Courtrsquos sentiment that journalistic

ethics51 play a considerably important role lsquogiven the influence wielded by the media in

contemporary societyrsquo52 It is no excuse to say that Sangrsquos duty as a journalist compelled

47 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19 See also International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

48 Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government Ethics(The ANNALS of the American Academy of Political and Social Science1995 )

49Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

50Stoll (n 49) BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR 20 May 1999) 65

51 Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5 October 2013

52Stoll (n 49) 104

-MEMORANDUM for theRESPONDENT-

him to commit an unlawful act53 when in fact this duty could have been discharged through

legal and ethical means54

4 Moreover it is established that ldquonews broadcasting should be based on truthfulness

ensured by the appropriate means of verification and proof and impartiality in

presentation description and narrationrdquo55 Sang clearly did not follow these standards56

Having in mind that ldquoduties and responsibilities which accompany the exercise of the right

tofreedom of expression by media professionals assume special significance in situations

ofconflict and tensionrdquo57 it can be manifestly perceived that Rho had sent the voicemailonly

to let off some steam to his good friend Taur58 which proves prima faciethere was no such

situation prevailing and dissemination does not meet these standards

b) The impugned requirement does not cause a lsquoChilling effectrsquo

5 Ultimately the Respondent reiterates that there is no interference with the freedom

of the press59 Further the damages60 imposed upon Sang do not amount to a form of

censorship61 intended to discourage the press from expressing criticism62 Requirement to

53 Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt accessed 5 October 2013

54 Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013

55 Resolution 1003 (1993) on the ethics of journalism adopted by the Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

56 Compromis para13

57Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

58 Compromis para11

59Freedom of the Press lthttpwwwpuclorgfrom-archivesMediafreedom-presshtmgt accessed 9 October 210360 Compromis para 16

61 Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October 2013

62Stoll (n 49) 154

-MEMORANDUM for theRESPONDENT-

pay damages was merely to discourage journalist for adopting unlawful methods for

obtaining information63 protect right to privacy enshrined under Article 12 UDHR and

public order64 and is wholly proportionate in this instance The safeguard afforded by

freedom of speech in relation to journalistic reporting on issues of general interest is subject

to the journalistacting in good faith and in accordance with the ethics of journalism65

Regardless of the Applicantrsquos misguided beliefs and best intentions his profession is no

source of immunity or impunity66 the road to perdition is paved with bona-fide intentions

II The requirement does not restrict Article 17 UDHR

6 Sang had doubtlessly breached his lsquoduties and responsibilitiesrsquo67 the ethics of

journalism68 and did not act lsquoin good faithrsquo69Besides the information lsquodoes not bear on

matters of general importancersquo70 and its dissemination is an abuse of the pressrsquos ldquowatchdogrdquo

role71To enhance this contention reliance is placed upon three groundsFirst while earlier

63 Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-

codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

64 Public Order lthttpwwwusiporgguiding-principles-stabilization-and-reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October 2013

65Stoll (n 32) 103

66Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) International Court of Justice 14 February 2002

67The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

68BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20 May 1999)

69Pedersen (n 44)

70Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

71Warren(n 49)

-MEMORANDUM for theRESPONDENT-

decisions of the Strasbourg courts tend not to tolerate high damages awards72 none of them

involved the scale of character assassination like in this case73Second spousal abuse74 is a

serious allegation aimed at scandalising Rhorsquos reputation for negative publicity75 purposes

and third such an allegation does not contribute to public debate where there are no facts

substantiating the allegation76

7 Furthermore such an allegation is solely speculative and was coldly calculated to

inflict maximum damage to Rhorsquos reputation77 Rhorsquos loss must be seen in the context of

his negative publicity78 and its impact on his pecuniary loss arising from the protest79 In

addition to that the grief over loss of reputation and honour which was clearly compounded

by the tasteless spousal abuse allegations80 Rho has absolute right to ask for damages since

his right to privacy is in issue and since ldquothe possibility of taking an action under civil law

should be guaranteed to enable a victim to claim possible damages for invasion of

privacyrdquo81 Furthermore the damages are reasonable and does not violate right to enjoyment

of property of the Applicant

72Jersild v Denmark App no 159808 (ECHR 23 September 1994)

73Clarification 10

74Domestic Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt accessed 6 October 2013

75 What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October 2013

76 Compromis para12

77 Compromis para13

78 Clarification 10

79 Compromis para9

80Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June 2007)

81 Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary Assembly of Council of Europe 26 July 1998 Article 14(i)

-MEMORANDUM for theRESPONDENT-

III In any event the requirement is permissible under Article 29(2) UDHR

a) The requirement is prescribed by law

8 Imposing damages on Sang for breach of the Wiretap Act82 is a justified interference

with his freedom of expression The interference in question is validly provided by law and

serves to protect an individualrsquos right to protection from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR

b) The requirement is in pursuance of legitimate aims

9 The ECtHR in Handyside v United Kingdom83 acknowledged that lsquostate authorities

are in principle in a better position than the international judge to give an opinion on the

exact content of these requirements as well as on the necessity of a restriction of a

penaltyrsquo84 Whether a restriction is necessary in the circumstances is therefore an inquiry

based on the facts and circumstances prevailing in the country concerned which the national

authorities are in a better position to undertake85 For the foregoing reasons the requirement

is in pursuance of legitimate aims

c) The restriction is necessary in a democratic society

10 The thrust of the Mhugan courtrsquos reasoning in imposing damages on Sang was

directed at his dissemination of lsquounlawfully obtained materialrsquo86 ie Rhorsquos recorded

82 Compromis para14

83 App no 549372( ECHR 7 December 1976)

84Handyside(n 28) at [48] The Sunday Times (n 8) Joint Dissenting Opinion of Judges Wiarda Cremona Thor Vilhjalmsson Ryssdal Ganshof van der Meersch Sir Gerald Fitzmaurice Bindschedler-Robert Liesh and Matscher

85Case of Klass and Others v Germany App no 502971(EHRR 6 September 1978)

86 Compromis para16

-MEMORANDUM for theRESPONDENT-

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 32: Oxford Respondent

Respondent possess a reasonable expectation of privacy under Article 12 which has been

violated after the dissemination of the unauthorised information took place In any event the

restriction is permissible under Article 29(2) of the UDHR It is prescribedby law under the

Wiretap Act The situation in Mhugan shows that the Wiretap Act is clearly in pursuit of the

legitimate aims of serves to protect an individualrsquos right from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR The restriction is necessary in a

democratic society as it corresponds to a pressing social need and is proportionate to the

legitimate aims

B The requirement by the court has mandated the Applicant to disclose the identity of

the source of the voicemail and it does not contravene the rights to freedom of expression

enshrined in Article 19 of the UDHR Herein firstly Article 19 does not include the right to

anonymity secondly it does not cause a chilling effect and finally the requirement does

not constitute prior restraint

Further the requirement does notcontravene the right to privacy guaranteed under Article 12

of the UDHR because there is no actual subjective expectation of privacy which is

objectively reasonable Finally theright to remedy enshrined in Article 8 of the UDHR has

not been violated because the Respondent has a right to effective remedy which is possible

only when the Applicant will disclose the name of the source of the information that

infiltrated the voicemailIn any event these measures are valid limitations under Article

29(2) of the UDHR Theysatisfy the three-tiered test of legality legitimacy and necessity

C The requirement by the Court mandated Centiplex to remove the impugned

information from the first page of search result First it does not contravene the right to

expression enshrined in Article 19 of the UDHR Herein firstly the restriction doesnt

impose filtering or prior restraint secondly it does not create a Chilling effect Second the

-MEMORANDUM for theRESPONDENT-

right to privacy guaranteed under Article 12 is violated as it has a superseding effect on

Applicants right guaranteed under Article 19 In any event these measures are valid

limitations under Article 29(2) of the UDHR They satisfy the three-tier test of legality

legitimacy and necessity

D The requirement under the 2013 Search Privacy Act is consistent with the UDHR

First the requirement does not contravene right to privacy enshrined in Article 12 of the

UDHRItexemplifies how in certain circumstances the right to privacy outweighs the right

to freedom of expression Second it does not contravene Article 19 as it complies with the

three-tier test under Article 29(2) The restriction is prescribed by law as it is made under the

authority of the SPA It is pursuant to the legitimate aim of protection of rights of others as

the Respondent possesses a reasonable expectation of privacy Further the restriction is

necessary in ademocratic society as the dissemination does not warrant to a debate of

general interest

ARGUMENTS

A THE DAMAGES IMPOSED ON THE APPLICANT ARE JUST FAIR AND

CONSISTENT WITH THE PROVISIONS OF THE UDHR

1 The courts finding imposed damages of 400000 MHD46 on the Applicant

Respondent submits that this requirement is consistent with the right to freedom of speech

and expression under Article 19 [I] right to property under Article 17 [II] and valid under

46 Compromis para16

-MEMORANDUM for theRESPONDENT-

Article 29(2) [III] Moreover the dissemination was privacy intrusive under Article 12

UDHR [IV]

I The requirement is not a restriction on Article 19 UDHR

2 Article 19 guarantees ldquothe right to freedom of opinion and expression hellip without

interferencehellipthrough any mediardquo47 Respondent submits that the impugned requirement

does not restrict the right to freedom of expression [a] and does not cause a chilling effect

[b]

a) The requirement does not restrict the freedom of expression

3 Notwithstanding the pressrsquo vital ldquowatchdogrdquo role48 journalists cannot be released

from their duty to obey the ordinary law on the basis that Article 19 of the UDHR affords

them protection49 In Stoll v Switzerland the ECtHR held that there is no lsquowholly

unrestricted freedom of expression even with respect to press reporting of matters of serious

public concernrsquo50 The Respondent emphasises the Courtrsquos sentiment that journalistic

ethics51 play a considerably important role lsquogiven the influence wielded by the media in

contemporary societyrsquo52 It is no excuse to say that Sangrsquos duty as a journalist compelled

47 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19 See also International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

48 Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government Ethics(The ANNALS of the American Academy of Political and Social Science1995 )

49Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

50Stoll (n 49) BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR 20 May 1999) 65

51 Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5 October 2013

52Stoll (n 49) 104

-MEMORANDUM for theRESPONDENT-

him to commit an unlawful act53 when in fact this duty could have been discharged through

legal and ethical means54

4 Moreover it is established that ldquonews broadcasting should be based on truthfulness

ensured by the appropriate means of verification and proof and impartiality in

presentation description and narrationrdquo55 Sang clearly did not follow these standards56

Having in mind that ldquoduties and responsibilities which accompany the exercise of the right

tofreedom of expression by media professionals assume special significance in situations

ofconflict and tensionrdquo57 it can be manifestly perceived that Rho had sent the voicemailonly

to let off some steam to his good friend Taur58 which proves prima faciethere was no such

situation prevailing and dissemination does not meet these standards

b) The impugned requirement does not cause a lsquoChilling effectrsquo

5 Ultimately the Respondent reiterates that there is no interference with the freedom

of the press59 Further the damages60 imposed upon Sang do not amount to a form of

censorship61 intended to discourage the press from expressing criticism62 Requirement to

53 Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt accessed 5 October 2013

54 Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013

55 Resolution 1003 (1993) on the ethics of journalism adopted by the Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

56 Compromis para13

57Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

58 Compromis para11

59Freedom of the Press lthttpwwwpuclorgfrom-archivesMediafreedom-presshtmgt accessed 9 October 210360 Compromis para 16

61 Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October 2013

62Stoll (n 49) 154

-MEMORANDUM for theRESPONDENT-

pay damages was merely to discourage journalist for adopting unlawful methods for

obtaining information63 protect right to privacy enshrined under Article 12 UDHR and

public order64 and is wholly proportionate in this instance The safeguard afforded by

freedom of speech in relation to journalistic reporting on issues of general interest is subject

to the journalistacting in good faith and in accordance with the ethics of journalism65

Regardless of the Applicantrsquos misguided beliefs and best intentions his profession is no

source of immunity or impunity66 the road to perdition is paved with bona-fide intentions

II The requirement does not restrict Article 17 UDHR

6 Sang had doubtlessly breached his lsquoduties and responsibilitiesrsquo67 the ethics of

journalism68 and did not act lsquoin good faithrsquo69Besides the information lsquodoes not bear on

matters of general importancersquo70 and its dissemination is an abuse of the pressrsquos ldquowatchdogrdquo

role71To enhance this contention reliance is placed upon three groundsFirst while earlier

63 Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-

codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

64 Public Order lthttpwwwusiporgguiding-principles-stabilization-and-reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October 2013

65Stoll (n 32) 103

66Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) International Court of Justice 14 February 2002

67The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

68BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20 May 1999)

69Pedersen (n 44)

70Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

71Warren(n 49)

-MEMORANDUM for theRESPONDENT-

decisions of the Strasbourg courts tend not to tolerate high damages awards72 none of them

involved the scale of character assassination like in this case73Second spousal abuse74 is a

serious allegation aimed at scandalising Rhorsquos reputation for negative publicity75 purposes

and third such an allegation does not contribute to public debate where there are no facts

substantiating the allegation76

7 Furthermore such an allegation is solely speculative and was coldly calculated to

inflict maximum damage to Rhorsquos reputation77 Rhorsquos loss must be seen in the context of

his negative publicity78 and its impact on his pecuniary loss arising from the protest79 In

addition to that the grief over loss of reputation and honour which was clearly compounded

by the tasteless spousal abuse allegations80 Rho has absolute right to ask for damages since

his right to privacy is in issue and since ldquothe possibility of taking an action under civil law

should be guaranteed to enable a victim to claim possible damages for invasion of

privacyrdquo81 Furthermore the damages are reasonable and does not violate right to enjoyment

of property of the Applicant

72Jersild v Denmark App no 159808 (ECHR 23 September 1994)

73Clarification 10

74Domestic Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt accessed 6 October 2013

75 What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October 2013

76 Compromis para12

77 Compromis para13

78 Clarification 10

79 Compromis para9

80Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June 2007)

81 Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary Assembly of Council of Europe 26 July 1998 Article 14(i)

-MEMORANDUM for theRESPONDENT-

III In any event the requirement is permissible under Article 29(2) UDHR

a) The requirement is prescribed by law

8 Imposing damages on Sang for breach of the Wiretap Act82 is a justified interference

with his freedom of expression The interference in question is validly provided by law and

serves to protect an individualrsquos right to protection from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR

b) The requirement is in pursuance of legitimate aims

9 The ECtHR in Handyside v United Kingdom83 acknowledged that lsquostate authorities

are in principle in a better position than the international judge to give an opinion on the

exact content of these requirements as well as on the necessity of a restriction of a

penaltyrsquo84 Whether a restriction is necessary in the circumstances is therefore an inquiry

based on the facts and circumstances prevailing in the country concerned which the national

authorities are in a better position to undertake85 For the foregoing reasons the requirement

is in pursuance of legitimate aims

c) The restriction is necessary in a democratic society

10 The thrust of the Mhugan courtrsquos reasoning in imposing damages on Sang was

directed at his dissemination of lsquounlawfully obtained materialrsquo86 ie Rhorsquos recorded

82 Compromis para14

83 App no 549372( ECHR 7 December 1976)

84Handyside(n 28) at [48] The Sunday Times (n 8) Joint Dissenting Opinion of Judges Wiarda Cremona Thor Vilhjalmsson Ryssdal Ganshof van der Meersch Sir Gerald Fitzmaurice Bindschedler-Robert Liesh and Matscher

85Case of Klass and Others v Germany App no 502971(EHRR 6 September 1978)

86 Compromis para16

-MEMORANDUM for theRESPONDENT-

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 33: Oxford Respondent

right to privacy guaranteed under Article 12 is violated as it has a superseding effect on

Applicants right guaranteed under Article 19 In any event these measures are valid

limitations under Article 29(2) of the UDHR They satisfy the three-tier test of legality

legitimacy and necessity

D The requirement under the 2013 Search Privacy Act is consistent with the UDHR

First the requirement does not contravene right to privacy enshrined in Article 12 of the

UDHRItexemplifies how in certain circumstances the right to privacy outweighs the right

to freedom of expression Second it does not contravene Article 19 as it complies with the

three-tier test under Article 29(2) The restriction is prescribed by law as it is made under the

authority of the SPA It is pursuant to the legitimate aim of protection of rights of others as

the Respondent possesses a reasonable expectation of privacy Further the restriction is

necessary in ademocratic society as the dissemination does not warrant to a debate of

general interest

ARGUMENTS

A THE DAMAGES IMPOSED ON THE APPLICANT ARE JUST FAIR AND

CONSISTENT WITH THE PROVISIONS OF THE UDHR

1 The courts finding imposed damages of 400000 MHD46 on the Applicant

Respondent submits that this requirement is consistent with the right to freedom of speech

and expression under Article 19 [I] right to property under Article 17 [II] and valid under

46 Compromis para16

-MEMORANDUM for theRESPONDENT-

Article 29(2) [III] Moreover the dissemination was privacy intrusive under Article 12

UDHR [IV]

I The requirement is not a restriction on Article 19 UDHR

2 Article 19 guarantees ldquothe right to freedom of opinion and expression hellip without

interferencehellipthrough any mediardquo47 Respondent submits that the impugned requirement

does not restrict the right to freedom of expression [a] and does not cause a chilling effect

[b]

a) The requirement does not restrict the freedom of expression

3 Notwithstanding the pressrsquo vital ldquowatchdogrdquo role48 journalists cannot be released

from their duty to obey the ordinary law on the basis that Article 19 of the UDHR affords

them protection49 In Stoll v Switzerland the ECtHR held that there is no lsquowholly

unrestricted freedom of expression even with respect to press reporting of matters of serious

public concernrsquo50 The Respondent emphasises the Courtrsquos sentiment that journalistic

ethics51 play a considerably important role lsquogiven the influence wielded by the media in

contemporary societyrsquo52 It is no excuse to say that Sangrsquos duty as a journalist compelled

47 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19 See also International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

48 Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government Ethics(The ANNALS of the American Academy of Political and Social Science1995 )

49Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

50Stoll (n 49) BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR 20 May 1999) 65

51 Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5 October 2013

52Stoll (n 49) 104

-MEMORANDUM for theRESPONDENT-

him to commit an unlawful act53 when in fact this duty could have been discharged through

legal and ethical means54

4 Moreover it is established that ldquonews broadcasting should be based on truthfulness

ensured by the appropriate means of verification and proof and impartiality in

presentation description and narrationrdquo55 Sang clearly did not follow these standards56

Having in mind that ldquoduties and responsibilities which accompany the exercise of the right

tofreedom of expression by media professionals assume special significance in situations

ofconflict and tensionrdquo57 it can be manifestly perceived that Rho had sent the voicemailonly

to let off some steam to his good friend Taur58 which proves prima faciethere was no such

situation prevailing and dissemination does not meet these standards

b) The impugned requirement does not cause a lsquoChilling effectrsquo

5 Ultimately the Respondent reiterates that there is no interference with the freedom

of the press59 Further the damages60 imposed upon Sang do not amount to a form of

censorship61 intended to discourage the press from expressing criticism62 Requirement to

53 Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt accessed 5 October 2013

54 Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013

55 Resolution 1003 (1993) on the ethics of journalism adopted by the Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

56 Compromis para13

57Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

58 Compromis para11

59Freedom of the Press lthttpwwwpuclorgfrom-archivesMediafreedom-presshtmgt accessed 9 October 210360 Compromis para 16

61 Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October 2013

62Stoll (n 49) 154

-MEMORANDUM for theRESPONDENT-

pay damages was merely to discourage journalist for adopting unlawful methods for

obtaining information63 protect right to privacy enshrined under Article 12 UDHR and

public order64 and is wholly proportionate in this instance The safeguard afforded by

freedom of speech in relation to journalistic reporting on issues of general interest is subject

to the journalistacting in good faith and in accordance with the ethics of journalism65

Regardless of the Applicantrsquos misguided beliefs and best intentions his profession is no

source of immunity or impunity66 the road to perdition is paved with bona-fide intentions

II The requirement does not restrict Article 17 UDHR

6 Sang had doubtlessly breached his lsquoduties and responsibilitiesrsquo67 the ethics of

journalism68 and did not act lsquoin good faithrsquo69Besides the information lsquodoes not bear on

matters of general importancersquo70 and its dissemination is an abuse of the pressrsquos ldquowatchdogrdquo

role71To enhance this contention reliance is placed upon three groundsFirst while earlier

63 Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-

codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

64 Public Order lthttpwwwusiporgguiding-principles-stabilization-and-reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October 2013

65Stoll (n 32) 103

66Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) International Court of Justice 14 February 2002

67The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

68BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20 May 1999)

69Pedersen (n 44)

70Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

71Warren(n 49)

-MEMORANDUM for theRESPONDENT-

decisions of the Strasbourg courts tend not to tolerate high damages awards72 none of them

involved the scale of character assassination like in this case73Second spousal abuse74 is a

serious allegation aimed at scandalising Rhorsquos reputation for negative publicity75 purposes

and third such an allegation does not contribute to public debate where there are no facts

substantiating the allegation76

7 Furthermore such an allegation is solely speculative and was coldly calculated to

inflict maximum damage to Rhorsquos reputation77 Rhorsquos loss must be seen in the context of

his negative publicity78 and its impact on his pecuniary loss arising from the protest79 In

addition to that the grief over loss of reputation and honour which was clearly compounded

by the tasteless spousal abuse allegations80 Rho has absolute right to ask for damages since

his right to privacy is in issue and since ldquothe possibility of taking an action under civil law

should be guaranteed to enable a victim to claim possible damages for invasion of

privacyrdquo81 Furthermore the damages are reasonable and does not violate right to enjoyment

of property of the Applicant

72Jersild v Denmark App no 159808 (ECHR 23 September 1994)

73Clarification 10

74Domestic Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt accessed 6 October 2013

75 What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October 2013

76 Compromis para12

77 Compromis para13

78 Clarification 10

79 Compromis para9

80Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June 2007)

81 Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary Assembly of Council of Europe 26 July 1998 Article 14(i)

-MEMORANDUM for theRESPONDENT-

III In any event the requirement is permissible under Article 29(2) UDHR

a) The requirement is prescribed by law

8 Imposing damages on Sang for breach of the Wiretap Act82 is a justified interference

with his freedom of expression The interference in question is validly provided by law and

serves to protect an individualrsquos right to protection from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR

b) The requirement is in pursuance of legitimate aims

9 The ECtHR in Handyside v United Kingdom83 acknowledged that lsquostate authorities

are in principle in a better position than the international judge to give an opinion on the

exact content of these requirements as well as on the necessity of a restriction of a

penaltyrsquo84 Whether a restriction is necessary in the circumstances is therefore an inquiry

based on the facts and circumstances prevailing in the country concerned which the national

authorities are in a better position to undertake85 For the foregoing reasons the requirement

is in pursuance of legitimate aims

c) The restriction is necessary in a democratic society

10 The thrust of the Mhugan courtrsquos reasoning in imposing damages on Sang was

directed at his dissemination of lsquounlawfully obtained materialrsquo86 ie Rhorsquos recorded

82 Compromis para14

83 App no 549372( ECHR 7 December 1976)

84Handyside(n 28) at [48] The Sunday Times (n 8) Joint Dissenting Opinion of Judges Wiarda Cremona Thor Vilhjalmsson Ryssdal Ganshof van der Meersch Sir Gerald Fitzmaurice Bindschedler-Robert Liesh and Matscher

85Case of Klass and Others v Germany App no 502971(EHRR 6 September 1978)

86 Compromis para16

-MEMORANDUM for theRESPONDENT-

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 34: Oxford Respondent

Article 29(2) [III] Moreover the dissemination was privacy intrusive under Article 12

UDHR [IV]

I The requirement is not a restriction on Article 19 UDHR

2 Article 19 guarantees ldquothe right to freedom of opinion and expression hellip without

interferencehellipthrough any mediardquo47 Respondent submits that the impugned requirement

does not restrict the right to freedom of expression [a] and does not cause a chilling effect

[b]

a) The requirement does not restrict the freedom of expression

3 Notwithstanding the pressrsquo vital ldquowatchdogrdquo role48 journalists cannot be released

from their duty to obey the ordinary law on the basis that Article 19 of the UDHR affords

them protection49 In Stoll v Switzerland the ECtHR held that there is no lsquowholly

unrestricted freedom of expression even with respect to press reporting of matters of serious

public concernrsquo50 The Respondent emphasises the Courtrsquos sentiment that journalistic

ethics51 play a considerably important role lsquogiven the influence wielded by the media in

contemporary societyrsquo52 It is no excuse to say that Sangrsquos duty as a journalist compelled

47 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19 See also International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

48 Warren Francke rsquoThe Evolving WatchdogThe Mediarsquos Role in Government Ethics(The ANNALS of the American Academy of Political and Social Science1995 )

49Stoll v Switzerland App no 6969801 (ECtHR 10 December 2007)

50Stoll (n 49) BladetTromsoslash and Stensaas v Norway [GC] App no 2198093 (ECHR 20 May 1999) 65

51 Principles for Ethicals Journalismlt httpwwwcajcap=1785gt accessed 5 October 2013

52Stoll (n 49) 104

-MEMORANDUM for theRESPONDENT-

him to commit an unlawful act53 when in fact this duty could have been discharged through

legal and ethical means54

4 Moreover it is established that ldquonews broadcasting should be based on truthfulness

ensured by the appropriate means of verification and proof and impartiality in

presentation description and narrationrdquo55 Sang clearly did not follow these standards56

Having in mind that ldquoduties and responsibilities which accompany the exercise of the right

tofreedom of expression by media professionals assume special significance in situations

ofconflict and tensionrdquo57 it can be manifestly perceived that Rho had sent the voicemailonly

to let off some steam to his good friend Taur58 which proves prima faciethere was no such

situation prevailing and dissemination does not meet these standards

b) The impugned requirement does not cause a lsquoChilling effectrsquo

5 Ultimately the Respondent reiterates that there is no interference with the freedom

of the press59 Further the damages60 imposed upon Sang do not amount to a form of

censorship61 intended to discourage the press from expressing criticism62 Requirement to

53 Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt accessed 5 October 2013

54 Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013

55 Resolution 1003 (1993) on the ethics of journalism adopted by the Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

56 Compromis para13

57Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

58 Compromis para11

59Freedom of the Press lthttpwwwpuclorgfrom-archivesMediafreedom-presshtmgt accessed 9 October 210360 Compromis para 16

61 Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October 2013

62Stoll (n 49) 154

-MEMORANDUM for theRESPONDENT-

pay damages was merely to discourage journalist for adopting unlawful methods for

obtaining information63 protect right to privacy enshrined under Article 12 UDHR and

public order64 and is wholly proportionate in this instance The safeguard afforded by

freedom of speech in relation to journalistic reporting on issues of general interest is subject

to the journalistacting in good faith and in accordance with the ethics of journalism65

Regardless of the Applicantrsquos misguided beliefs and best intentions his profession is no

source of immunity or impunity66 the road to perdition is paved with bona-fide intentions

II The requirement does not restrict Article 17 UDHR

6 Sang had doubtlessly breached his lsquoduties and responsibilitiesrsquo67 the ethics of

journalism68 and did not act lsquoin good faithrsquo69Besides the information lsquodoes not bear on

matters of general importancersquo70 and its dissemination is an abuse of the pressrsquos ldquowatchdogrdquo

role71To enhance this contention reliance is placed upon three groundsFirst while earlier

63 Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-

codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

64 Public Order lthttpwwwusiporgguiding-principles-stabilization-and-reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October 2013

65Stoll (n 32) 103

66Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) International Court of Justice 14 February 2002

67The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

68BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20 May 1999)

69Pedersen (n 44)

70Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

71Warren(n 49)

-MEMORANDUM for theRESPONDENT-

decisions of the Strasbourg courts tend not to tolerate high damages awards72 none of them

involved the scale of character assassination like in this case73Second spousal abuse74 is a

serious allegation aimed at scandalising Rhorsquos reputation for negative publicity75 purposes

and third such an allegation does not contribute to public debate where there are no facts

substantiating the allegation76

7 Furthermore such an allegation is solely speculative and was coldly calculated to

inflict maximum damage to Rhorsquos reputation77 Rhorsquos loss must be seen in the context of

his negative publicity78 and its impact on his pecuniary loss arising from the protest79 In

addition to that the grief over loss of reputation and honour which was clearly compounded

by the tasteless spousal abuse allegations80 Rho has absolute right to ask for damages since

his right to privacy is in issue and since ldquothe possibility of taking an action under civil law

should be guaranteed to enable a victim to claim possible damages for invasion of

privacyrdquo81 Furthermore the damages are reasonable and does not violate right to enjoyment

of property of the Applicant

72Jersild v Denmark App no 159808 (ECHR 23 September 1994)

73Clarification 10

74Domestic Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt accessed 6 October 2013

75 What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October 2013

76 Compromis para12

77 Compromis para13

78 Clarification 10

79 Compromis para9

80Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June 2007)

81 Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary Assembly of Council of Europe 26 July 1998 Article 14(i)

-MEMORANDUM for theRESPONDENT-

III In any event the requirement is permissible under Article 29(2) UDHR

a) The requirement is prescribed by law

8 Imposing damages on Sang for breach of the Wiretap Act82 is a justified interference

with his freedom of expression The interference in question is validly provided by law and

serves to protect an individualrsquos right to protection from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR

b) The requirement is in pursuance of legitimate aims

9 The ECtHR in Handyside v United Kingdom83 acknowledged that lsquostate authorities

are in principle in a better position than the international judge to give an opinion on the

exact content of these requirements as well as on the necessity of a restriction of a

penaltyrsquo84 Whether a restriction is necessary in the circumstances is therefore an inquiry

based on the facts and circumstances prevailing in the country concerned which the national

authorities are in a better position to undertake85 For the foregoing reasons the requirement

is in pursuance of legitimate aims

c) The restriction is necessary in a democratic society

10 The thrust of the Mhugan courtrsquos reasoning in imposing damages on Sang was

directed at his dissemination of lsquounlawfully obtained materialrsquo86 ie Rhorsquos recorded

82 Compromis para14

83 App no 549372( ECHR 7 December 1976)

84Handyside(n 28) at [48] The Sunday Times (n 8) Joint Dissenting Opinion of Judges Wiarda Cremona Thor Vilhjalmsson Ryssdal Ganshof van der Meersch Sir Gerald Fitzmaurice Bindschedler-Robert Liesh and Matscher

85Case of Klass and Others v Germany App no 502971(EHRR 6 September 1978)

86 Compromis para16

-MEMORANDUM for theRESPONDENT-

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 35: Oxford Respondent

him to commit an unlawful act53 when in fact this duty could have been discharged through

legal and ethical means54

4 Moreover it is established that ldquonews broadcasting should be based on truthfulness

ensured by the appropriate means of verification and proof and impartiality in

presentation description and narrationrdquo55 Sang clearly did not follow these standards56

Having in mind that ldquoduties and responsibilities which accompany the exercise of the right

tofreedom of expression by media professionals assume special significance in situations

ofconflict and tensionrdquo57 it can be manifestly perceived that Rho had sent the voicemailonly

to let off some steam to his good friend Taur58 which proves prima faciethere was no such

situation prevailing and dissemination does not meet these standards

b) The impugned requirement does not cause a lsquoChilling effectrsquo

5 Ultimately the Respondent reiterates that there is no interference with the freedom

of the press59 Further the damages60 imposed upon Sang do not amount to a form of

censorship61 intended to discourage the press from expressing criticism62 Requirement to

53 Legal definition lt httpwwwwisegeekcomwhat-is-an-unlawful-acthtmgt accessed 5 October 2013

54 Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013

55 Resolution 1003 (1993) on the ethics of journalism adopted by the Parliamentary Assembly of Council of Europe on 1July 1993 Article 4

56 Compromis para13

57Erdoğdu and İnce v Turkey App no 2506794 2506894 (ECHR 8 July 1999)

58 Compromis para11

59Freedom of the Press lthttpwwwpuclorgfrom-archivesMediafreedom-presshtmgt accessed 9 October 210360 Compromis para 16

61 Censorship lt httpmashablecomcategorycensorshipgt accessed 5 October 2013

62Stoll (n 49) 154

-MEMORANDUM for theRESPONDENT-

pay damages was merely to discourage journalist for adopting unlawful methods for

obtaining information63 protect right to privacy enshrined under Article 12 UDHR and

public order64 and is wholly proportionate in this instance The safeguard afforded by

freedom of speech in relation to journalistic reporting on issues of general interest is subject

to the journalistacting in good faith and in accordance with the ethics of journalism65

Regardless of the Applicantrsquos misguided beliefs and best intentions his profession is no

source of immunity or impunity66 the road to perdition is paved with bona-fide intentions

II The requirement does not restrict Article 17 UDHR

6 Sang had doubtlessly breached his lsquoduties and responsibilitiesrsquo67 the ethics of

journalism68 and did not act lsquoin good faithrsquo69Besides the information lsquodoes not bear on

matters of general importancersquo70 and its dissemination is an abuse of the pressrsquos ldquowatchdogrdquo

role71To enhance this contention reliance is placed upon three groundsFirst while earlier

63 Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-

codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

64 Public Order lthttpwwwusiporgguiding-principles-stabilization-and-reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October 2013

65Stoll (n 32) 103

66Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) International Court of Justice 14 February 2002

67The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

68BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20 May 1999)

69Pedersen (n 44)

70Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

71Warren(n 49)

-MEMORANDUM for theRESPONDENT-

decisions of the Strasbourg courts tend not to tolerate high damages awards72 none of them

involved the scale of character assassination like in this case73Second spousal abuse74 is a

serious allegation aimed at scandalising Rhorsquos reputation for negative publicity75 purposes

and third such an allegation does not contribute to public debate where there are no facts

substantiating the allegation76

7 Furthermore such an allegation is solely speculative and was coldly calculated to

inflict maximum damage to Rhorsquos reputation77 Rhorsquos loss must be seen in the context of

his negative publicity78 and its impact on his pecuniary loss arising from the protest79 In

addition to that the grief over loss of reputation and honour which was clearly compounded

by the tasteless spousal abuse allegations80 Rho has absolute right to ask for damages since

his right to privacy is in issue and since ldquothe possibility of taking an action under civil law

should be guaranteed to enable a victim to claim possible damages for invasion of

privacyrdquo81 Furthermore the damages are reasonable and does not violate right to enjoyment

of property of the Applicant

72Jersild v Denmark App no 159808 (ECHR 23 September 1994)

73Clarification 10

74Domestic Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt accessed 6 October 2013

75 What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October 2013

76 Compromis para12

77 Compromis para13

78 Clarification 10

79 Compromis para9

80Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June 2007)

81 Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary Assembly of Council of Europe 26 July 1998 Article 14(i)

-MEMORANDUM for theRESPONDENT-

III In any event the requirement is permissible under Article 29(2) UDHR

a) The requirement is prescribed by law

8 Imposing damages on Sang for breach of the Wiretap Act82 is a justified interference

with his freedom of expression The interference in question is validly provided by law and

serves to protect an individualrsquos right to protection from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR

b) The requirement is in pursuance of legitimate aims

9 The ECtHR in Handyside v United Kingdom83 acknowledged that lsquostate authorities

are in principle in a better position than the international judge to give an opinion on the

exact content of these requirements as well as on the necessity of a restriction of a

penaltyrsquo84 Whether a restriction is necessary in the circumstances is therefore an inquiry

based on the facts and circumstances prevailing in the country concerned which the national

authorities are in a better position to undertake85 For the foregoing reasons the requirement

is in pursuance of legitimate aims

c) The restriction is necessary in a democratic society

10 The thrust of the Mhugan courtrsquos reasoning in imposing damages on Sang was

directed at his dissemination of lsquounlawfully obtained materialrsquo86 ie Rhorsquos recorded

82 Compromis para14

83 App no 549372( ECHR 7 December 1976)

84Handyside(n 28) at [48] The Sunday Times (n 8) Joint Dissenting Opinion of Judges Wiarda Cremona Thor Vilhjalmsson Ryssdal Ganshof van der Meersch Sir Gerald Fitzmaurice Bindschedler-Robert Liesh and Matscher

85Case of Klass and Others v Germany App no 502971(EHRR 6 September 1978)

86 Compromis para16

-MEMORANDUM for theRESPONDENT-

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 36: Oxford Respondent

pay damages was merely to discourage journalist for adopting unlawful methods for

obtaining information63 protect right to privacy enshrined under Article 12 UDHR and

public order64 and is wholly proportionate in this instance The safeguard afforded by

freedom of speech in relation to journalistic reporting on issues of general interest is subject

to the journalistacting in good faith and in accordance with the ethics of journalism65

Regardless of the Applicantrsquos misguided beliefs and best intentions his profession is no

source of immunity or impunity66 the road to perdition is paved with bona-fide intentions

II The requirement does not restrict Article 17 UDHR

6 Sang had doubtlessly breached his lsquoduties and responsibilitiesrsquo67 the ethics of

journalism68 and did not act lsquoin good faithrsquo69Besides the information lsquodoes not bear on

matters of general importancersquo70 and its dissemination is an abuse of the pressrsquos ldquowatchdogrdquo

role71To enhance this contention reliance is placed upon three groundsFirst while earlier

63 Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-

codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October

2013

64 Public Order lthttpwwwusiporgguiding-principles-stabilization-and-reconstruction-the-web-version7-rule-lawpublic-ordergt accessed 4 October 2013

65Stoll (n 32) 103

66Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) International Court of Justice 14 February 2002

67The Sunday Times v United Kingdom App no 653874 (ECHR 26April 1979)

68BladetTromsoslashTromsoslash AndStensaas V NorwayApp No 2198093 (ECtHR20 May 1999)

69Pedersen (n 44)

70Tammer v Estonia App no 4120598 (ECHR 6 February 2001)

71Warren(n 49)

-MEMORANDUM for theRESPONDENT-

decisions of the Strasbourg courts tend not to tolerate high damages awards72 none of them

involved the scale of character assassination like in this case73Second spousal abuse74 is a

serious allegation aimed at scandalising Rhorsquos reputation for negative publicity75 purposes

and third such an allegation does not contribute to public debate where there are no facts

substantiating the allegation76

7 Furthermore such an allegation is solely speculative and was coldly calculated to

inflict maximum damage to Rhorsquos reputation77 Rhorsquos loss must be seen in the context of

his negative publicity78 and its impact on his pecuniary loss arising from the protest79 In

addition to that the grief over loss of reputation and honour which was clearly compounded

by the tasteless spousal abuse allegations80 Rho has absolute right to ask for damages since

his right to privacy is in issue and since ldquothe possibility of taking an action under civil law

should be guaranteed to enable a victim to claim possible damages for invasion of

privacyrdquo81 Furthermore the damages are reasonable and does not violate right to enjoyment

of property of the Applicant

72Jersild v Denmark App no 159808 (ECHR 23 September 1994)

73Clarification 10

74Domestic Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt accessed 6 October 2013

75 What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October 2013

76 Compromis para12

77 Compromis para13

78 Clarification 10

79 Compromis para9

80Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June 2007)

81 Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary Assembly of Council of Europe 26 July 1998 Article 14(i)

-MEMORANDUM for theRESPONDENT-

III In any event the requirement is permissible under Article 29(2) UDHR

a) The requirement is prescribed by law

8 Imposing damages on Sang for breach of the Wiretap Act82 is a justified interference

with his freedom of expression The interference in question is validly provided by law and

serves to protect an individualrsquos right to protection from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR

b) The requirement is in pursuance of legitimate aims

9 The ECtHR in Handyside v United Kingdom83 acknowledged that lsquostate authorities

are in principle in a better position than the international judge to give an opinion on the

exact content of these requirements as well as on the necessity of a restriction of a

penaltyrsquo84 Whether a restriction is necessary in the circumstances is therefore an inquiry

based on the facts and circumstances prevailing in the country concerned which the national

authorities are in a better position to undertake85 For the foregoing reasons the requirement

is in pursuance of legitimate aims

c) The restriction is necessary in a democratic society

10 The thrust of the Mhugan courtrsquos reasoning in imposing damages on Sang was

directed at his dissemination of lsquounlawfully obtained materialrsquo86 ie Rhorsquos recorded

82 Compromis para14

83 App no 549372( ECHR 7 December 1976)

84Handyside(n 28) at [48] The Sunday Times (n 8) Joint Dissenting Opinion of Judges Wiarda Cremona Thor Vilhjalmsson Ryssdal Ganshof van der Meersch Sir Gerald Fitzmaurice Bindschedler-Robert Liesh and Matscher

85Case of Klass and Others v Germany App no 502971(EHRR 6 September 1978)

86 Compromis para16

-MEMORANDUM for theRESPONDENT-

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 37: Oxford Respondent

decisions of the Strasbourg courts tend not to tolerate high damages awards72 none of them

involved the scale of character assassination like in this case73Second spousal abuse74 is a

serious allegation aimed at scandalising Rhorsquos reputation for negative publicity75 purposes

and third such an allegation does not contribute to public debate where there are no facts

substantiating the allegation76

7 Furthermore such an allegation is solely speculative and was coldly calculated to

inflict maximum damage to Rhorsquos reputation77 Rhorsquos loss must be seen in the context of

his negative publicity78 and its impact on his pecuniary loss arising from the protest79 In

addition to that the grief over loss of reputation and honour which was clearly compounded

by the tasteless spousal abuse allegations80 Rho has absolute right to ask for damages since

his right to privacy is in issue and since ldquothe possibility of taking an action under civil law

should be guaranteed to enable a victim to claim possible damages for invasion of

privacyrdquo81 Furthermore the damages are reasonable and does not violate right to enjoyment

of property of the Applicant

72Jersild v Denmark App no 159808 (ECHR 23 September 1994)

73Clarification 10

74Domestic Violencelthttplegal-dictionarythefreedictionarycomSpousal+abusegt accessed 6 October 2013

75 What is negative publicity lthttpwwwprsawestdistorgwhat-is-negative-publicity-and-how-to-turn-it-into-a-good-thingphpgt accessed 4 October 2013

76 Compromis para12

77 Compromis para13

78 Clarification 10

79 Compromis para9

80Hachette Filipacchi Associes v France App no 7111101( ECHR 14 June 2007)

81 Resolution 1165 (1998) on Right to privacy adopted by the Parliamentary Assembly of Council of Europe 26 July 1998 Article 14(i)

-MEMORANDUM for theRESPONDENT-

III In any event the requirement is permissible under Article 29(2) UDHR

a) The requirement is prescribed by law

8 Imposing damages on Sang for breach of the Wiretap Act82 is a justified interference

with his freedom of expression The interference in question is validly provided by law and

serves to protect an individualrsquos right to protection from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR

b) The requirement is in pursuance of legitimate aims

9 The ECtHR in Handyside v United Kingdom83 acknowledged that lsquostate authorities

are in principle in a better position than the international judge to give an opinion on the

exact content of these requirements as well as on the necessity of a restriction of a

penaltyrsquo84 Whether a restriction is necessary in the circumstances is therefore an inquiry

based on the facts and circumstances prevailing in the country concerned which the national

authorities are in a better position to undertake85 For the foregoing reasons the requirement

is in pursuance of legitimate aims

c) The restriction is necessary in a democratic society

10 The thrust of the Mhugan courtrsquos reasoning in imposing damages on Sang was

directed at his dissemination of lsquounlawfully obtained materialrsquo86 ie Rhorsquos recorded

82 Compromis para14

83 App no 549372( ECHR 7 December 1976)

84Handyside(n 28) at [48] The Sunday Times (n 8) Joint Dissenting Opinion of Judges Wiarda Cremona Thor Vilhjalmsson Ryssdal Ganshof van der Meersch Sir Gerald Fitzmaurice Bindschedler-Robert Liesh and Matscher

85Case of Klass and Others v Germany App no 502971(EHRR 6 September 1978)

86 Compromis para16

-MEMORANDUM for theRESPONDENT-

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 38: Oxford Respondent

III In any event the requirement is permissible under Article 29(2) UDHR

a) The requirement is prescribed by law

8 Imposing damages on Sang for breach of the Wiretap Act82 is a justified interference

with his freedom of expression The interference in question is validly provided by law and

serves to protect an individualrsquos right to protection from arbitrary interference with his

privacy as guaranteed by Article 12 of the UDHR

b) The requirement is in pursuance of legitimate aims

9 The ECtHR in Handyside v United Kingdom83 acknowledged that lsquostate authorities

are in principle in a better position than the international judge to give an opinion on the

exact content of these requirements as well as on the necessity of a restriction of a

penaltyrsquo84 Whether a restriction is necessary in the circumstances is therefore an inquiry

based on the facts and circumstances prevailing in the country concerned which the national

authorities are in a better position to undertake85 For the foregoing reasons the requirement

is in pursuance of legitimate aims

c) The restriction is necessary in a democratic society

10 The thrust of the Mhugan courtrsquos reasoning in imposing damages on Sang was

directed at his dissemination of lsquounlawfully obtained materialrsquo86 ie Rhorsquos recorded

82 Compromis para14

83 App no 549372( ECHR 7 December 1976)

84Handyside(n 28) at [48] The Sunday Times (n 8) Joint Dissenting Opinion of Judges Wiarda Cremona Thor Vilhjalmsson Ryssdal Ganshof van der Meersch Sir Gerald Fitzmaurice Bindschedler-Robert Liesh and Matscher

85Case of Klass and Others v Germany App no 502971(EHRR 6 September 1978)

86 Compromis para16

-MEMORANDUM for theRESPONDENT-

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 39: Oxford Respondent

voicemail a reference to his private conversation with his friend given the Wiretap Actrsquos87

explicit aim of preventing dissemination of unlawful or unauthorised accessed information

If dissemination was limited to lawfully obtained information and not by infiltration of the

account the court may well have decided differently The Courtrsquos finding had therefore

provided lsquorelevant and sufficient reasonsrsquo88for imposing damages on Sang

IV The dissemination was privacy intrusive under Article 12 UDHR

11 While the press plays an important role in democratic society press freedom comes

with obligations and responsibilities89The satisfaction of public curiosity is not enough to

justify such a gross infringement of Rhorsquos right to privacy90Article 12 of the UDHR91states

that no one shall be subjected to arbitrary interference with his privacy family home or

correspondence The privacy of communication is further explicitly protected under Article

17 of the ICCPR92 Article 8 of the ECHR93 and under various national laws94 Personal

information privacy is another aspect of right to privacy which essentially means controlling

access to and dissemination of information about oneself95 The aforesaid right of Rho has

been violated by the Applicant in the instant matter Applicants use of unlawful tactics for

87 ibid

88Chauvy and Others v France App no 6491501( ECHR 26 June 2004)

89BladetTromsoslash(n 33)

90Karhuvaara and Iltalehti v Finland App no 5367800 (ECHR 16 November 2004)

91 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12

92 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 17

93 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Art 8

94 The Constitution of United States of America 1788 amendment IV The Constitution of Argentina 1853 s 18 s 19 The Constitution of Belgium 1831 art 22 The Constitution of Brazil 1988 art 5 The Constitution Act of Finland 2000 s 8 The Constitution of India 1950 Art 21

95 Ferdinand D Schoeman Privacy and Social Freedom (Cambridge University Press Cambridge 1992) 115

-MEMORANDUM for theRESPONDENT-

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 40: Oxford Respondent

unauthorised access to the recorded voicemail to institute dissemination leads to a complete

loss of all Personally Identifiable Information96 the aggregation of which has revealed new

facts about the person that heshe did not expect would be revealed97 and for which there

exists a reasonable expectation of privacy98

12 It is also a well established fact that the lines between contentnon content are

extremely blurred on the internet99 Various examples of regulations to control this unbridled

infringement by the government into the private information of users can be found in the

provisions of the EU Privacy Directive100 OECD Guidelines for Data Protection101 German

Data Protection Laws and the Federal Data Privacy Act 1974102 which incorporates the

privacy guidelines laid down in the HEW Report 103 All these legislations make it

imperative to obtain user consent or at least give the user a warning before procuring hisher

information none of which is being done in the instant case thereby violating the provisions

of the Wiretap Act104 and Article 12 of the UDHR

96Electronic Privacy Information Centre lsquoData Retentionrsquolt httpwwwepicorg privacyintldata_retentionhtmlgt accessed 8 October 2013

97 Daniel J Solove lsquoA Taxonomy of Privacyrsquo (2006) 154 U Pa L Rev 477

98Katz v United States 389 US 347 (1967)

99 Susan Freiwald lsquoUncertain Privacy Communication Attributes After the Digital Telephony Actrsquo 69 S Cal L Rev 949 (1996)

100 EU Council Directive (EC) 9546EC EU Data Privacy Directive [1995] OJ (L281)

101 Organisation for Economic Co-operation and Development lsquoOECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Datarsquo lthttpwwwoecdorgdocument1803343en_2649_201185_1815186_1_1_ 1_100htmlgt accessed 3 October 2013

102 Federal Data Protection Act 1974

103 Electronic Privacy Information System lsquoRecords Computers and the Rights of Citizens Report of the Secretarys Advisory Committee on Automated Personal Data Systems July 1973rsquo lthttpwwwepicorgprivacyhew1973reportgt accessed 1 October 2013

104 ibid

-MEMORANDUM for theRESPONDENT-

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 41: Oxford Respondent

B T HE R EQUIREMENT TO D ISCLOSE THE I DENTITY O F T HE S OURCE I S

C ONSISTENT W ITH T HE P ROVISIONS O F T HE U DHR

13 According to the subpoena the court has mandated the Applicant to disclose the

identity of the source of the voicemail105 The Respondent requests this Court to find that

this requirement does not restrict the rights enshrined in Articles 19[I] Further it does not

violate the rights to privacy under Article 12 [II] and In any event the requirement is

permissible under Article 29(2) [III] the requirement is consistent with Article 8 [IV]

I The requirement does not restrict the rights enshrined in Article 19UDHR

14 Respondent submits that the impugned requirement does not infringe the right to

freedom of expression of users as first Article 19 does not include the right to anonymity

[a] secondly it does not cause a chilling effect [b] and finally the requirement does not

constitute prior restraint [c]

a) Article 19 does not include the right to anonymity

15 The right to anonymous free speech is not recognised under UDHR and other

international human rights instruments106 Although such a right is recognised in the United

States107 it is not considered absolute Indeed in Buckley108 the Court upheld the validity of

certain legislations which sought to disclose campaign finance details in lsquoinformational

105 Compromis para 22(b)

106 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10

107McIntyre v Ohio Elections Commission 514 US 334 (1995) (Scalia J)

108Buckley v Valeo424 US 1 (1976)

-MEMORANDUM for theRESPONDENT-

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 42: Oxford Respondent

interestrsquo109 Further anonymity has been the subject of severe criticism as it lsquofacilitates

wrong by eliminating accountabilityrsquo110 In the context of the Internet it may be used as a

shield for unlawful purposes111 Indeed the African Commission on Human Rights

recognises the need for sources to reveal in judicial proceedings112 Indeed in Branzburg v

Hayes113 the US Supreme Court rejected a reporterrsquos claim that the flow of information

would be seriously impeded if reporters could be compelled to reveal the names of

confidential sources A fortiori the flow of information cannot be hindered if a reporter is

ldquorequiredrdquo to produce a witness to prove his own case

b) Requirement does not cause a chilling effect

16 The existence of a chilling effect requires a distinct and palpable injury114 and not

merely a hypothetical one115 In fact in Laird116 the Court rejected the possibility of a

chilling effect lsquomerely from the individualrsquos concomitant fears that armed with the fruits of

those activitiesthe agency might in the future take some other and additional action

detrimental to thatindividualrsquo117 Here no evidence of real injury to the applicant is

available Consequently mere apprehension that the disclosure of source may be used

109Buckley (n 109)

110McIntyre (n 108)

111KU v Finland App no 287202 (ECtHR 2 March 2009) Matthew Mazzotta Balancing Act Finding Consensus on Standards for Unmasking Anonymous Internet Speakers (2010) 51 BCL Rev 833 840

112 African Commission on Human and Peoplesrsquo Rights lsquoResolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)rsquo Res 62(XXXII)02 Principle XV

113 408 US 665

114OShea v Littleton 414 US 488 (1974) Johnson v Stuart 702 F 2d 193 (9th Cir 1983) Meese v Keene 481 US 465 (1987)

115OShea (n 61) Los Angeles v Lyons 461 US 95 (1983) Johnson v Stuart 702 F 2d 193 (9th Cir 1983)

116Laird v Tatum 408 US 1 (1972)

117Laird (n 117)

-MEMORANDUM for theRESPONDENT-

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 43: Oxford Respondent

against the applicant in future does not constitute a chilling effect118 Given the severity of

the allegations the lack of even basic facts to support them the malice of Applicants in

disseminating and the immateriality of the legitimate questions the interference posed by

the 400000 MHD119 awards of damages is not disproportionate to the right to reputation120

being protected In these specific circumstances there is no general ldquochilling effectrdquo to

speech criticising the government

c) The requirement does not constitute a prior restraint

17 Indeed a requirement constitutes a prior restraint if the right to free speech is

entirely blocked121 Here the impugned requirement does not forbid but rather regulates

free speech122 Pertinently Applicant is not prohibited from posting on the website but only

required to disclose the identity of the source123

II The requirement is not a restriction on Article 12 UDHR

18 The right to privacy exists when there is an actual subjective expectation of privacy

which is objectively reasonable124 Accordingly a reasonable expectation of privacy125 is 118Laird (n117)Meese v Keene 481 US 465 (1987)

119 ibid

120 Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013

121Niemotko v Maryland 340 US 268 (1951) Shuttleworth v Birmingham 394 US 147 (1969) Frisby v Schultz 487 US 474 (1988) Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

122Acrara v Cloud Books Inc478 US 697 (1986) Alexander v US 509 US 544 (1993)

123 Compromis para 22(b)

124Katz v United States 389 US 347 (1967)

125Reasonable Expectation of Privacylthttplegal-dictionarythefreedictionarycomReasonable+expectation+of+privacygt accessed 9

-MEMORANDUM for theRESPONDENT-

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 44: Oxford Respondent

absent in information which has been voluntarily disclosed as any subjective expectation is

negated126 In this case the source submitted information to Sang voluntarily127 as he chose

to disclose his identity There is no reasonable expectation of privacy on the part of the

source as Sang is not a professional journalist [a] and he is indicative of malice hence

defeating qualified privilege [b]

a) The applicant is not a professional journalist

19 Mhuganian law recognises a qualified privilege128 for professional journalist129 who

disseminate information to the public regularly and for a living130 Sang does not satisfy the

pre-requisite for being a lsquoprofessional journalistrsquo which makes it manifest that Sang is not

entitled to a qualified privilege In addition to that Sang is a lsquorenegade journalistrsquo and not a

professional journalist because of his prior actions in contravention of the Wiretap Act A

lsquorenegade journalistrsquo is therefore one that flagrantly ignores obligations and

responsibilities131 that come with press freedoms and openly flouts the ethics of

October 2013

126 Allegra Knopf lsquoPrivacy and the Internet Welcome to the Orwellian Worldrsquo (1999-2000) 11 U Fla J L amp Pub Polrsquoy 79 82 Catherine Crump lsquoData Retention Privacy Anonymity and Accountability Onlinersquo (2003) 56 Stanford Law Review 191

127 Compromis para 13

128Legal protection for Journalistic Sourceslt httpwwwsplcorgknowyourrightslegalresearchaspid=31gt accessed 5 October 2013

129 Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered

lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013

130 Compromis para 13

131Flux v Moldova (No 6) App no 2282404 (ECHR 29 July 2008) Tara and Poiata v Moldova App no 3630503 ECHR 16 October 2007)

-MEMORANDUM for theRESPONDENT-

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 45: Oxford Respondent

journalism132 Such a journalist cannot be relied on to provide accurate and reliable

information Her words do not contribute to serious public debate and reactive measures

against their publication are not a significant interference The protection the press enjoys

requires that they act in good faith and on an accurate factual basis133Sangrsquos statements

reflects neither The dissemination of unlawfully obtained information was illegal134

Further there was no factual basis for his allegations of spousal abuse135 and there was thus

no right to make it136 His statements added to the sting with a malicious line lsquofans should

stop listening to his music in protestrsquo without any research or verification of his own137

Therefore the interference of not extending qualified privilege to such statements is clearly

proportionate

b) The applicant is indicative of malice hence defeating qualified privilege

20 Sangrsquos actions were thus undertaken purely for dramatic effect inevitably

exacerbating the volatility of the situation He exploited this increased tension to add to the

gravamen of his accusation His actions were excessive even if his aim was merely to spur

rational public debate The irresistible conclusion is that Sang intended for his actions to

have more far-reaching consequences His actions and statements were thus likely to lead to

demonstrations during troubled times for Rho who was already facing false allegations of

physically and emotionally abusing his wife138 Naturally a demonstration under these

132White (n 56)

133White (n 56)

134 Compromis 16

135 BBC News UK politics lsquoGovernment considers right to know on domestic abusersquo lt httpwwwbbccouknewsuk-politics-1544457gtgtax6gt accessed 16 September 2013

136Flux (n 132) Tara (n 132)

137RumyanaIvanova v Bulgaria (App no 3620703) ECHR 14 February 2008

138 Compromis para 3

-MEMORANDUM for theRESPONDENT-

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 46: Oxford Respondent

circumstances would inexorably increase the propensity of escalation to negative publicity

of Rho As reasonably expected this materialised at Rhorsquos vigil and eventually he had to

emerge from his grief of rumours to attempt to quell the negative publicity and called for a

press conference with his wife139 but even after elucidate explanation to the public that he

wonrsquot even dream about abusing his dear wife and the voicemail was just to give a spice to

his friend140 Sang kept on writing against him141 thereby causing damage to his reputation

and honour

III In any event the requirement is permissible under Article 29(2) UDHR

21 Respondent submits that the rights guaranteed under Articles 12 19 and 20 are not

absolute142 and may be subject to restrictions143 The three-tiered test to determine legality

under Article 29(2)144 is met in this case as first the requirement is prescribed by law [a]

139 Compromis para 11

140 Ibid

141 Compromis para 12

142Worm v Austria (1997) 25 EHRR 454

143 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) African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) art 9 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 11 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) art 10(2) International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 21 and 22 African Charter on Human and Peoplesrsquo Rights (adopted 27 June 1981 entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHR) arts 10 and 11 American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) arts 15 and 16 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 11 Chaplinsky v New Hampshire 315 US 567 (1941)

144 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 European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) UNCHR lsquoGeneral Comment 34rsquo in lsquoArticle 19 (Freedom of Opinion and Expression)rsquo (2011) UN Doc CCPRCGC34 UNCHR lsquoGeneral Comment 10rsquo in lsquoArticle 19 (Freedom of Opinion)rsquo (1983) UN Doc CCPRCGC10 The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Albert WomahMukong v Cameroon Communication No 4581991 UN Doc CCPRC51D4581991 (1994) (HRC) Surek v Turkey App no 2412294 (ECtHR 8 July 1999) Herrera-Ulloa v Costa Rica Petition No 12367 (IACtHR 2 July 2004)

-MEMORANDUM for theRESPONDENT-

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 47: Oxford Respondent

secondly it pursues a legitimate aim [b] and finally the requirement is necessary in a

democratic society [c]

a) The requirement is prescribed by law

22 A restriction is prescribed by law if it has a basis in domestic law145 and is

accessible foreseeable and precise146 A law is accessible if it gives the citizens an adequate

indication of the legal rules applicable to a given case147 It is foreseeable if it is precise

enough to enable citizens to regulate their conduct148 and predict the consequences of non-

compliance149 Further it must not vest arbitrary powers for interference with the

executive150In this case the requirement possesses a basis in domestic law as it is imposed

by the Wiretap Act151 The restriction is clearly accessible and foreseeable Indeed the

precise acts which constitute the dissemination of information and the consequences of non-

compliance are expressly prescribed152

b) Requirement pursues a legitimate aim

145Hinczewski v Poland App no 3490705 (ECtHR 5 October 2010)

146Silver and Others v United Kingdom Application no 594772 (25 March 1983) The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999) Gaweda v Poland App no 2622995 (ECtHR 14 March 2002)

147The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991)

148The Sunday Times v United Kingdom App no 1316687 (ECtHR 26 November 1991) Rekveacutenyi v Hungary App no 2539094 (ECtHR 20 May 1999)

149Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24

April 1990)

150Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACtHPR 1998)

151Compromis para 14

152 Compromis para 15

-MEMORANDUM for theRESPONDENT-

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 48: Oxford Respondent

23 The restriction pursues a legitimate aim the lsquoprotection of rights of othersrsquo153 The

unlawful access of the voicemail154 and further dissemination of the same155 infringe the

right to privacy of Rho established under Article 12 of the UDHR The protection of private

life extends to a personrsquos identity such as his name156 picture157etc even in a public

context158 Admittedly public figures possess a lesser expectation of privacy than ordinary

persons159 However Rho is not a public figure Respondent submits that public figures are

persons holding public office including those who play a role in public life160 or those who

thrust themselves voluntarily into the forefront of any public controversy161 In this case

Rho does not exercise any public function play any role in public life or feature voluntarily

in any public controversy At best his activities attract extensive media attention by virtue

of his song ldquoPokeacutePokeacuterdquo162 which is not sufficient to transform him into a public figure163

153 International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3)(a) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(a) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2)

154 Compromis para 13

155 Compromis para 9

156Burghartz v Switzerland (1994) 18 EHRR 101 Von Hannover v Germany (2005) 40 EHRR 1

157Schuumlssel v Austria App no 4240998 (ECtHR 21 February 2002) Von Hannover v Germany (2005) 40 EHRR 1 Constitution of Brazil 1988 (Brazil) art 5

158PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Von Hannover v Germany (2005) 40 EHRR 1

159New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

160 Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

161Gertz v Welch 418 US 323 (1974) Time Inc v Firestone 424 US 448 (1976) Bartnicki v Vopper532 US 514 (2001) Susan M Giles lsquoPublic Plaintiffs and Private Facts Should the ldquoPublic Figurerdquo Doctrine be transplanted into Privacy Lawrsquo (2004-05) 83 Neb Law Rev 1204

162 Compromis para 2

-MEMORANDUM for theRESPONDENT-

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 49: Oxford Respondent

Indeed even if Rho is deemed a public personality he still possesses a reasonable

expectation of privacy in his private life such as his private conversation with his friends

24 Moreover the voicemail164 in the instant case were not envisaged for limited use but

disseminated to the public165 Finally the state may undertake positive obligations to secure

the private life of individuals in the sphere of relations of individuals among themselves166

Therefore the impugned requirement is in pursuit of legitimate aims Public order is a

legitimate aim for restricting the rights guaranteed under Articles 19 and 20167 Broadly it

includes the lsquosum of rules which ensure the functioning of society or the set of fundamental

principles on which society is foundedrsquo168

c) Requirement is necessary in a democratic society

25 The test for determining the necessity of a requirement is whether the disclosure of

confidential source contributes to a debate of general interest169 Here the subpoena170

relates exclusively to the disclosure of the source of Sang who unlawfully obtained the

163Hutchinson v Proxmire443 US 111 (1979) Wolston v Readerrsquos Digest Association Inc443 US 157 (1979) Dresbach v Double Day amp Co 518 F Supp 1285 1295 (DDC 1981) Jacobsen v Rochester Communications 410 NW 2d 830 836 (Minn 1987) W Wat Hopkins lsquoThe Involuntary Public Figure Not So Dead After Allrsquo (2003) 21 Cardozo Arts and Entertainment Law Journal 1 29 John Tobin lsquoThe United States Public Figure Test Should it be introduced into Australiarsquo (1994) 17 UNSW Law Journal 383 403

164 Compromis para 19

165Friedl v Austria 1522589 (ECHR 31 January 1995)PG and JH v United Kingdom App no 4478798 (ECtHR 25 September 2001) Peck v United Kingdom (2003) 36 EHRR 41 Mirror Group Newspapers v United KingdomApp no 3940104 (ECtHR 18 January 2011)

166X and Y v Netherlands App no 897880(ECHR 26 March 1985)

167 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2) American Convention on Human Rights (adopted 22 November 1969 entered into force 18 July 1978) (ACHR) art 13(2)(b) European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) (ECHR) art 10(2) Constitution of India 1950 (India) art 19(2)

168Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc ECN 419854 cl I(B)(iii)(22)

169Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

170 Compromis para 22(b)

-MEMORANDUM for theRESPONDENT-

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 50: Oxford Respondent

voicemail and courts finding complies with protection of private life of Rho which warrant

no legitimate public interest171 At best they stimulate public curiosity which does not

override the right to privacy of Rho172 Furthermore the presence of Rhorsquos wife in the press

conference and not objecting to Rhorsquos vehement denials173 clearly buttresses the fact that the

rumours regarding the spousal abuse by Rho were mendacious and egregiously fake

IV The requirement is consistent with Article 8 UDHR

26 It is reverentially submitted that the requirement to disclose the name of the source is

in consonance with Article 8 as Rho has a right to effective remedy which is possible only

when the Applicant will disclose the name of the source of the information that infiltrated

the voicemail of Alkamit174 Therefore the courts finding mandating that the Applicant

should disclose the source of the impugned information were in furtherance of protecting

Rhorsquos right under Article 8 UDHR

C THE COURTS FINDING IS CONSISTENT WITH THE PROVISIONS OF

THE UDHR

27 The Courts order175 mandated Centiplex to remove the impugned information from

the first page of search results The defendants submit that the requirement does not

contravenes the right to freedom of speech and expression under Article 19 [I]Moreover

the restriction is permissible under Article 29(2) [II]

171Von Hannover v Germany (2005) 40 EHRR 1 ETK v News Group Newspapers [2011] EWCA Civ 439

172Campmany y Diez de Revenga and Lopez GaliachoPerona v Spain App no 5422400 (ECtHR 12 December 2000) Julio BouGibert and El Hogar Y La Moda JA v Spain App no 1492902 (ECtHR 13 May 2003) VonHannover v Germany (2005) 40 EHRR 1 Leempoel v Belgium App no 6477201 (ECtHR 9 November 2006) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) Mosley v UnitedKingdom App no 4800908 (ECtHR 10 May 2011)

173 Compromis para 11

174 Compromis para 9

175Compromis para 19

-MEMORANDUM for theRESPONDENT-

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 51: Oxford Respondent

I Requirement does not contravene Article 19 UDHR

28 The interference in question is validly provided by law and serves to protect an

individualrsquos right to protection from arbitrary interference176 with his privacy as guaranteed

by Article 12 of the UDHR Securing recognition and respect for the rights and freedoms of

others is legitimate under Article 29(2) of the same In the instant matter Article 12

supersedes Article 19 as there has been an intrusion177 in ones privacy regarding others right

to expression178Moreover the restriction doesnt impose filtering or prior restraint[a] and

does not create a Chilling effect[b]

a) The licensing requirement is not an act of Filtering or Prior Restraint

29 Article 10 of the ECHR179 provides that States are allowed to require licensing for

broadcasting television or cinema enterprises180In Cox v New Hampshire181 the US

Supreme Court recognized the need for licensing schemes Furthermore if the licensing

board is not granted with arbitrary power and its discretion is exercised with ldquouniformity of

method of treatment upon the facts of each applicationrdquo182 then it is allowed when necessary

for reasons such as public convenience proper policing and prevention of overlapping

176United Nations Cyber School Busltwwwunorgcyberschoolbushumanrightsdeclaration20aspgt accessed

1 October 2013

177Privacy and freedom from state intrusionrsquolthttpwwwindexoncensorshiporg201307privacy-and-freedom-from-state-intrusiongt accessed 9 October 2013178Freedom from suspicion Principles to protect freedom of expression and privacy against mass surveillancelt httpwwwarticle19orgresourcesphpresource37186enfreedom-from-suspicion-principles-to-protect-freedom-of-expression-and-privacy-against-mass-surveillancesthashL4Ui70RSdpufgt accessed 9 October 2013179 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights as amended) (ECHR) Nov 4 1950 213 UNTS 221

180Groppera Radio AG and Others v Switzerland App No 1089084(ECtHR 28 March 1990)

181 Cox v New Hampshire 312 US 569 (1941)

182 Cox(n )

-MEMORANDUM for theRESPONDENT-

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 52: Oxford Respondent

schedulesCorrelating the aforementioned provision with the instant matter it clearly

buttresses the fact that how an intervention was sought by the Mhugan government where

users were not prohibited from posting on the website but just not on an alleged platform

which was violating ones right183 Similar content-neutral requirements prior to actual

expression have been upheld in several cases184 Consequently the standard of intermediate

scrutiny ought to be applied185 instead of strict scrutiny which is applicable to prior

restraints186 and filtering187 As per this standard a content-neutral regulation is lawful if it

furthers a substantial governmental interest188 In this matter the Mhuganian government

pursues aims of protecting the rights of its citizens189 Moreover the restriction should be

incidental and not of an excessive degree190 Further the restriction is incidental as it does

not prescribe a direct ban on speech but only a requirement of not to violate ones Article

12

b) The impugned requirement does not cause a lsquoChilling effectrsquo

30 In the present matter the act implied by the government was a remedy against the

right of other191 the act was done as a safeguard measure for securing the vested interests of

183 Compromis para 16184Freedman v Maryland 380 US 51 (1965) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994)

185United States v OBrien 391 US 367 (1968) Turner Broadcasting System Inc v FCC 512 US 622 (1994) Watchtower Bible and Tract Society of New York Inc et al v Village of Stratton 536 US 150 (2002)

186Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013

187Court sys Filtering inPublic Libraries Not Censorshiplthttpreadwritecom20100507court_says_internet_filtering_in_public_librariesawesm=~ok9Z4g2OAPbx3Sgt accessed 8 October 2013188United States (n)

189Protecting CitizensrsquoCivil RightslthttpwwwtheiacporgPublicationsGuidesProjectsProtectingCitizens8217CivilRightsPCCRtabid308Defaultaspxgt accessed 8 October 2103

190Ward v Rock Against Racism 491 US 781 (1989) Madsen v Womenrsquos Health Center Inc et al 512 US 753 (1994) Bartnicki v Vopper532 US 514 (2001)

-MEMORANDUM for theRESPONDENT-

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 53: Oxford Respondent

its citizens which are secured by the UDHR192In actual this act is to be settled as a strong

precedent against those who might violate others right in future Consequently not

constitute a chilling effect

II Requirement is permissible under Article 29 (2) UDHR

31 As aforementioned these obligations require limitations to the freedom of

expression to meet the three tiered test which demands that interferences with freedom of

expression [a] be provided by law [b] for a legitimate aim and [c] necessary in a

democratic society

a) Provided by law

32 The Filtering system is established by the Mhuganian Judiciary which is empowered

to do so The requirement of filtering is accessible and preciseIn any case a certain latitude

is allowed for ambiguity in the wording of the law In the case of Olsson v Sweden193where

it is laid down that this requirement refers to the foreseeability of the measure and the

precision with which it is drafted Also the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise194The

facet of law and the role of judiciary in the instant matter is to be undertaken as a valid step

in implying its role in a free society In Silver and Others v the United Kingdom195it was

stated that ldquolaws may be couched in terms which are vague and whose interpretation and

application are questions of practicerdquoThe right to freedom of expression and ideas does

lsquonot prevent States from requiring the licensing of broadcasting enterprisesrsquo196 The

preparatory work of Article 19 of the ICCPR also reveals that licensing serves the aim of 191The substance of the right to effective judicial protection against violation of social rights lt httpwwwcidhoasorgcountryrepaccesodesc07engaccesodescvenghtmgt accessed 8 October 2013192 Article 12 UDHR193Olsson v Sweden (1988) 11 EHRR 259

194 ibid

195Silver and Others v The United Kingdom App no 594772 (ECHR 25 March 1983)

-MEMORANDUM for theRESPONDENT-

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 54: Oxford Respondent

lsquopublic orderrsquo197 Whether a restriction is necessary in the circumstances is therefore an

inquiry based on the facts and circumstances prevailing in the country concerned which the

national authorities are in a better position to undertake198 The interference here is rarely

invasive In Margareta and Roger Anderson v Sweden ECtHR stated that the impugned

measuresshould have a basis in domestic law199 It is clear that the limitations have a basis

in domestic law and is the need of hour in the present matter

b) For a legitimate aim

33 Here the interference was also made pursuant to a legitimate aim within Article

29(2) of the UDHR specifically for the lsquodue recognition of the rights of othersrsquo specifically

the right to privacy enshrined in Article 12 of the UDHR This view is reinforced by

Plon(socieacuteteacute) v France200where the ECtHR observed that ones lsquohonour reputation and

privacyrsquo constitutes lsquorights of othersrsquo within the meaning of Article 10 of the ECHR201 In

Margareta and Roger Anderson v Sweden the Court stated ldquoa law which confers a

discretion is not in itself inconsistent with this requirement provided that the scope of the

discretion and the manner of its exercise are indicated with sufficient clarity having regard

to the legitimate aim in question to give the individual adequate protection against

196Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

197Public Orderlt httparcgovinspeechcprhtmgt accessed 9 October 2013198Klass and Others v Germany (App no 502971)App No 502971(ECHR 6 September1978)

199Margareta and Roger Anderson v Sweden App no 1293687(ECHR 25 February 1992)

200App no 5814800(ECHR 18 May 2004)

201Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention of Human Rights as amended) (ECHR) Article 10 Paragraph 1

-MEMORANDUM for theRESPONDENT-

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 55: Oxford Respondent

arbitrary interferencerdquo202 Defendants contend that safety of the public securing ones right

to privacyis recognized as justifiable grounds to limit freedom of expressionrdquo203

c) Necessary in a democratic society

34 In a democratic society the freedom of expression cannot be of greater importance

than basic human right to life204 There must be proportionality between effects of measures

limiting the rights and the objective which has been identified as of ldquosufficient

importancerdquo205 In New York Times Co v United States206the court justified the governmentrsquos

stance in levying restrictions on rights of people when the government is convinced that the

information to be revealed threatens grave and irreparable207 injury which happened in the

present matter Moreover the restriction was in favour of the society as it was aimed at

protecting their rights in future

D THE REQUIREMENT UNDER 2013 SEARCH PRIVACY ACT IS

CONSISTENT WITH THE UDHR

35 The 2013 Search Privacy Act provides that it is unlawful for a search engine to sell

information about a persons search queries without his consent The Respondent submits

that the requirement is consistent with right to privacy under Article 12[I] and right to

202 ibid

203Kenneth Good v Republic of Botswana 31305 (ACHPR 26 May 2010)

204R v Oakes [1986] 1 SCR 103 Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR

1221(Zimbabwean SC) 1231205 ibid

206 403 US 713

207Nadine Strossen lsquoRecent US and International Judicial Protection of Individual Rights A Comparative

Legal Process Analysis and Proposed Synthesis 41 Hastingsrsquo LJ 805 (1990)

-MEMORANDUM for theRESPONDENT-

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 56: Oxford Respondent

freedom of speech and expression under Article 19 which is read in consonance with Article

29(2) [II]

I Requirement is consistent with Article 12 UDHR

36 Just as there is a right to freedom of expression everyone has a right to privacy208

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

against the intrusion into onersquos privacy209In the instant matter its is pertinent to note that

privacy of Rho is incalculably violatedas stated in Von Hannover v Germany210itexemplifies

how in certain circumstances the right to privacy outweighs the right to freedom of

expression The court also held that the intrusion into onersquos private life lsquomay be no greater

than that necessary to protect the overriding public interestrsquo211 Nothing in the Compromis

suggests that the information of Rho was of the public interest In Von Hannover the court

found that there is a lsquozone of interaction of a person with others even in a public context

which may fall within the scope of ldquoprivate liferdquo212 The SPA is lawful because it is a

controlled measure aimed at protecting the people of Mhugan unduly burdening the freedom

of expression and even being implemented in an prospective way213 will act as a safeguard

in futureThe SPA only prohibits lsquothe selling of ldquosearch queriesrdquo about a person without the

personrsquos prior consentrsquo214as it is pertinent to follow a particular code of conduct Every

Mhuganian citizen has a right to privacy which in this case outweighs others right to

freedom of expression

II Requirementis consistent with Article 19 UDHR

208 UNDR (n 40) art 12 ICCPR (n 41) art 17 sect 1 ECHR (n45) art 8 sect 1

209Von Hannover v Germany (2005) 40 EHRR 1

210 Von Hannover(n)

211Galella v Onassis 487 F 2d 986 (1973)

212Von Hannover( n 2)

213Compromis para 19(f)214 Compromis para 9

-MEMORANDUM for theRESPONDENT-

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 57: Oxford Respondent

37 Under the authority of the 2013 SPA the Government has mandated it to be

unlawful for a search engine to sell information about a persons search queries without his

consentIt is submitted that the alleged act is just a procedural weight but not a substantive

factor it is a requirement to be followed even before implying a speech and crafting an

expressionRespondent submits that the restriction imposed by this requirement on Article

19 is permissible under Article 29(2) as it satisfies the three-tiered test of legality [a]

legitimacy [b] and necessity [c]215

a) The restriction is prescribed by law

38 Respondent submits that the restriction is prescribed by law216 Applicants may

arguethat the restriction is imposed in exercise of executive discretion However in the

absence of express provisions guidance may be obtained from other operative provisions in

light of the object of such legislation217Consequently the government order imposing the

requirement arises out of the operative provisions of the Act

b) The restriction is in pursuance of legitimate aims

39 The impugned post infringes the right to privacy of Rho Furthermore the SPA is

enacted as a medium of Safeguard218 Admittedly public figures possess a lesser expectation

215Worm v Austria (1997) 25 EHRR 454

216Hinczewski v Poland App no 3490705 (ECHR 5 October 2010)

217Chelmsford Trailer Park Inc v Town of Chelmsford and Others 393 Mass 186 (1984)

218 Compromis para 19

-MEMORANDUM for theRESPONDENT-

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 58: Oxford Respondent

of privacy than ordinary persons219 and Applicants may contend that the information was

obtained first accidently but then it was maliciously disseminated Respondent observes that

a spatial conception of the right to privacy has been categorically rejected universally220

Moreover publication of prima facie records as compared to other forms of information is

more intrusive221 which in the instant matter were used as an element of malice against Rho

It conveys information lsquonot otherwise truly obtainablersquo222Further clandestine filming

without the knowledge of the subject as in this case infringes the right to privacy as its

prevention is beyond the control of the subject223 Finally the state may undertake positive

obligations to secure the private life of individuals in the sphere of relations of individuals

among themselves224 Therefore the impugned restriction is in pursuit of legitimate aims

c) The restriction is in necessary in a democratic society

40 The test for determining the necessity of a restriction is whether the publication

contributes to a debate of general interest225The impugned measure is proportionate It does

not impose a complete restriction on the challenged freedom of speech but merely

219New York Times Co v Sullivan 376 US 254 (1964) Lingens v Austria App no 981582 (ECtHR 8 July 1986) Decision 601994 (XII 24) AB (Hungary) A v B and Anr[2002] EWCA Civ 337 (UK) ZeljkoBodrozic vSerbia and Montenegro Communication No 11802003 UN Doc CCPRC85D11802003 (2006) (UN Human Rights Committee) Council of Europe Committee of Ministers Declaration on Freedom of Political Debate in the Media 12 February 2004 CMDelOJ(2004)872E

220Katz v United States 389 US 347 (1967)

221Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) D v L [2004] EMLR 1 (UK) Douglas v Hello (No 3) [2005] EWCA Civ 595 (UK) Mirror Group Newspapers v United Kingdom App no 3940104 (ECtHR 18 January 2011) A McClurg lsquoBringing Privacy Law out of the closet A tort theory of liability for intrusions in public placesrsquo (1995) 73 North Carolina Law Rev 989 NA Moreham lsquoPrivacy in Public Placesrsquo (2006) 65(3) Cambridge Law Journal 606 613

222Douglas v Hello (No 1) [2001] QB 967 (UK)

223R v Broadcasting Standards Commission ex parte British Broadcasting Corporation (Liberty intervening) [2000] 3 All ER 989 (UK) R v Loveridge[2001] EWCA Crim 973 (UK) Theakston v Mirror Group 29Newspapers Ltd [2002] EWHC 137(QB) (UK) HRH Princess of Wales v MGN Newspapers App no 1306997 (ECtHR 11 December 2003) Von Hannover v Germany (2005) 40 EHRR 1 Hachette Filipacchi Associeacutes v France App no 7111101 (ECtHR 23 July 2009)

224X and Y v Netherlands App no897880(ECHR 26 March 1985)

225Von Hannover v Germany (2005) 40 EHRR 1 McKennitt v Ash [2007] 3 WLR 194

-MEMORANDUM for theRESPONDENT-

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 59: Oxford Respondent

requires the procurement of consent before publication of private information Indeed the

rule of consent finds place in several regimes226 The state also enjoys a wide margin of

appreciation in matters involving balancing private and public interests227 In addition this

restriction is only restricted to obtain the consent on search queries228 and meanwhile

secures the right of people of Mhugan from further happening of similar acts Therefore the

restriction is proportionate to the aim

PRAYER

FOR THE FOREGOING REASONS THE RESPONDENT RESPECTFULLY

REQUESTS THIS COURT TO ADJUDGE AND DECLARE THAT

A THE REQUIREMENT TO PAY DAMAGES OF 400000 MHD FOR

DISSEMINATION OF UNAUTHORISED INFORMATION IS CONSISTENT WITH

THE UDHR

B THE REQUIREMENT TO DISCLOSETHE SOURCE OF THE RECORDED

VOICEMAIL IS CONSISTENT WITH THE UDHR

C THE REQUIREMENT THAT THE IMPUGNED INFORMATION NEVER APPEAR

ON THE FIRST PAGE IS CONSISTENT WITH THE UDHR

D THE 2013 SEARCH PRIVACY ACT IS CONSISTENT WITH THE UDHR

AND ANY OTHER RELIEF THAT THIS HONrsquoBLE COURT MAY BE PLEASED TO

GRANT IN THE INTERESTS OF JUSTICE EQUITY AND GOOD CONSCIENCE

226Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) (UK) Mosley v United Kingdom App no 4800908 (ECtHR 10 May 2011)

227Funke v France App no 1082884(ECHR 25 February 1993) Keegan v Ireland (1994) 18 EHRR 342

228cCompromis para 19

-MEMORANDUM for theRESPONDENT-

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013
Page 60: Oxford Respondent

ALL OF WHICH IS RESPECTFULLY SUBMITTED

ON THIS 22ND DAY OF NOVEMBER

Sd-

ON BEHALF OF SANG AND CENTIPLEX

220R

AGENTS FOR THE RESPONDENT

-MEMORANDUM for theRESPONDENT-

  • Law Media Definition of Media Law And Ethics lt httpmedia-lawsblogspotin201106definition-of-media-law-and-ethicshtmlgt accessed 5 October 2013
  • Manner of collection of personal information (principle four) lt httpprivacyorgnzthe-privacy-act-and-codesprivacy-principlesmanner-of-collection-of-personal-information-principle-fourgt accessed 5 October 2013
  • Heather Rogers ldquoIs there a right to reputationrdquolthttpinforrmwordpresscom20101026is-there-a-right-to-reputation-part-1-heather-rogers-qcgt accessed 9 October 2013
  • Mark duezersquo What is journalismProfessional identity and ideology of journalists reconsidered lthttpjousagepubcomcontent64442abstractgt accessed 9 October 2013
  • Kruslin v France App no 1180185(ECHR 24 April 1990) Huvig v France App No 1110584( ECHR 24 April 1990)
  • Prior Restraintlt httpwwwlawcornelleduwexprior_restraintgt accessed 8 October 2013