oxford respondent
DESCRIPTION
Price MediaTRANSCRIPT
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-