219A

THE OXFORD PRICE MEDIA LAW MOOT COURT COMPETITION 2016-17

BALLAYA & SEESEY

MEMORIAL FOR THE APPLICANTS

WORDS:5072
 TABLE OF CONTENTS

LIST OF ABREVIATIONS…………………………………………………………...…V

INDEX OF AUTHORITIES…………………………………………..……………..…VII

STATEMENT OF RELEVANT FACTS……………………………..………..……...XXVI

STATEMENT OF JURISDICTION……………………………………….…..………XXX

QUESTIONS PRESENTED……………………………………………………………XXXI

SUMMARY OF ARGUMENTS……………………………………….……………….XXXII

ARGUMENTS…………………………………………………………………………...… 1-33

ISSUE A: AMOSTRA’S PROSECUTION OF BALLAYA UNDER THE SIA VIOLATES

INTERNATIONAL PRINCIPLES, INCLUDING ARTICLE 19 OF THE UDHR AND

ARTICLE 19 OF THE ICCPR……………………………………………………………01

I. Ballaya’s prosecution violates Article 19 of the UDHR and ICCPR respectively……01

a. Political Speeches are protected from restriction imposed by the government….02

b. Restrictions on mere criticism have chilling effect on freedom of expression…..03

II. Restriction imposed by prosecution is not permissible under Article 29(2) of the

UDHR……………………………………………………………………………………….04

A. SIA is not prescribed by law…………………………………………………04

B. The restriction didn’t pursue a legitimate aim as not threatened the public order..06

C. Restriction imposed by prosecution is not necessary in a democratic society…..07

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 i.The restriction doesn’t serve Pressing Social Need ……………………..07

ii. Restriction is not proportionate with legitimate aim pursued…………..08

ISSUE B: AMOSTRA’S PROSECUTION OF BALLAYA UNDER THE ELECTION

SAFETY ACT 2016 (ESA) IS VIOLATIVE OF INTERNATIONAL PRINCIPLES,

INCLUDING ARTICLE 19 OF UDHR AND ARTICLE 19 OF THE ICCPR:………….09

I. Prosecution of Ballaya under the ESA is inconsistent with Article 19 of the

UDHR and Article 19 of the ICCPR as it imposed unreasonable restrictions on

FOE………………………………………………………………………………….10

a. Ballaya’s statement is political statement on public interest and election………….10

b. Ballaya’s prosecution was illegal and unnecessary since her statements did not

constitute hate speech……………………………………………………………….11

II. Restriction imposed by prosecution is not permissible under Article 29(2) of the

UDHR and Article 19(3) of the ICCPR……………………………………………12

a. The Restriction is not prescribed by law……………………………………………13

b. The restriction does not serve any legitimate purpose……………………………….14

c. The restriction was not necessary in a democratic society and proportionate……….15

III. Prosecution of Ballaya attracts the doctrine of ‘Double Jeopardy’………………………….16

ISSUE -03: AMOSTRA DOES NOT HAVE JURISDICTION TO OBTAIN AND

ENFORCE THE CIVIL ORDER AGAINST SEESEY IN AMOSTRA AND

SARRANTO......................................................................................................................16

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 I. Exercising jurisdiction over Amostra is incompatible with the territorial sovereignty

principle of International law………………………………………………………17

II. Presence of a subsidiary within a state cannot suffice to avail jurisdiction over a

foreign parent company…………………………………………………………….18

III. Seesey does not constitute ‘minimum contact’ with forum state and harm caused by

Seesey was not intentional …………………………………………………………19

(A) SeeSey website is not interactive enough to constitute ‘minimum contact’

with the forum state………………………………………………………………..19

(B) SeeSey did not have minimum contacts with Amostra and the harm caused by

SeeSey is not intentional……………………………………………………………20

ISSUE-04:- AMOSTRA’S CIVIL ORDER AGAINST SEESEY VIOLATES

INTERNATIONAL PRINCIPLES, INCLUDING ARTICLE 19 OF UDHR AND

ARTICLE 19 OF THE ICCPR………………………………………………………………23

I. Civil order places a illegal restriction upon article 19 of both the UDHR and

ICCPR………………………………………………………………………………23

a. SeeSey’s right to FOE has been violated……………………………………….24

b. SeeSey’s right to freedom of expression as an intermediary has been violated..27

c. Civil order has a chilling effect upon the freedom of expression……………….28

II. Restriction imposed by civil order is not permissible under article 29(2) of the

UDHR……………………………………………………………………………….29

a. Restriction imposed by civil order is not prescribed by law……………………29

b. Restriction imposed by civil order is not pursued with legitimate aim…………30

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 c. Restriction imposed by civil order is not necessary in a democratic society and

proportionate……………………………………………………………………31

1. There was no pressing social need to issue “the take down order…………32

2. The restriction was not proportionate to the legitimate aim………………..33

PRAYER……………………………………………………………………….………………34

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 LIST OF ABBREVIATIONS

ACHR American Convention on Human Rights

ACHPR African Charter on Human and Peoples’ Rights

ACtHPR African Court on Human and Peoples’ Rights

AHRLR African Human Rights Law Reports

App No. Application Number

Art Article

cl Clause

Doc Document

EC European Council

ECHR European Convention on Human Right

ECtHR European Court of Human Rights

ECJ European Court of Justice

ECR European Court Reports

EHR European Human Rights Reports (Stratsbourg)

EHRR European Human Rights Reports

EMLR Entertainment and Media Law Reports

ESA Election Safety Act of 2016

EU European Union

FOE Freedom of Expression

HLR Harvard Law Review

HRC Human Rights Committee

IACHR Inter-American Commission on Human Rights

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ICCPR International Convention on Civil and Political Rights

ICESCR International Covenant Economic, Social and Cultural Rights

IP Internet Protocol

OECD Organization for Economic Co-operation and Development

Res Resolution

SIA Stability & Integrity Act of 2014

UDHR Universal Declaration of Human Rights

UN United Nations

UNCHR United Nations Commission on Human Rights

UNHCR United Nations Commission of Human Rights

UNGA United Nations General Assembly

UNSC United Nations Security Council

UNTS United Nations Treaty Series

US United States

UK United Kingdom

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 LIST OF SOURCES/AUTHORITIES

DECLARATIONS, TREATIES AND CONVENTIONS

American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July

1978)

American Declaration of the Rights and Duties of Man (adopted by the Ninth International

Conference of American States, Bogota, Columbia, 1948)

African Charter on Human and People’s Rights (adopted 27 July 1981, entered into force 21

October 1986)

Convention for the Protection of Human Rights and Fundamental Freedom (adopted 4 November

1950, entered into force 3 September 1953)

European Convention on Human Rights (adopted 4 November 1950, entered into force 3

September 1953) 213 UNTS 1932

International Convention on Civil and Political Rights (adopted 16 December 1966, entered into

force 23 March 1976) 999 UNTS 171

Universal Declaration on Human Rights (adopted 10 December 1948) UNGA Res 217 A (III)

CASES FROM ECtHR

Arslan v Turkey App no 23462/94 (ECtHR, 8 July 1999) 15, 31

Bowman v UK App no 24839/94 (ECtHR, 9 February 1998) 01

Balsyte-Lideikiene v Lithuania App no 72596/01 (ECtHR, 4 December 2008) 09

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Bayatyan v Armenia, App no 23459/03 (ECtHR, 7 July 2011) 05

Barthold v Germany (1985) 7 EHRR 383 23

Belpietro v Italy App no 43612/10 (ECtHR, 24 September 2013) 04

Beerman v Germany (1989) 12 EHRR 161 29

Castells v Spain App no 11798/85 (ECtHR, 23 April 1992) 8

Cumhuriet Vakfi and Others v Turkey (2013) EHRR 925 28

Chapman v United Kingdom App no 27238/95 (ECtHR, 18 January 2001) 32

Dudgeon v United Kingdom (1981) 4 EHRR 149 15

Delfi v Estonia App no 40287/98 (ECtHR, 16 June 2015) 7, 15, 23, 24,

25, 26

Editorial Board of Pravoye Delo and Shtekel v Ukraine App no 33014/05 (ECtHR, 5 August

2011) 4

Éditions Plon v France App no 58148/00 (ECtHR, 18 May 2004) 4

Freedom and Democratic Party (ӦZDEP) v Turkey (2000) 31 EHRR 27 3

Gaweda v Poland App no 26229/95 (ECtHR, 14 March 2002) 29

Gillan and Quinton v United Kingdom App no 4158/05 (ECtHR, 12 January 2010) 29

Gunduz v Turkey App no3571/97 (ECtHR, 4 September 2003) 9

Giniewski v France (2006) 45 EHRR 23 3

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Handyside v United Kingdom App no 5493/72 (ECtHR, 7 December 1976) 2, 3, 4,

6, 7, 15, 22, 26 30

Huvig v France App no 11105/84 (ECtHR, 24 April 19990 13

Hatton and others v United Kingdom App no 36022/97 (ECtHR, 8 July 2003) 32

Independent News and Media and Independent Newspapers Ireland Ltd v Ireland App no

55120/00 (ECtHR, 8 June 2005) 5

Konstantin and others v Russia App nos 55509/07 and 29520/09 (ECtHR 2013) 29

Janowiec and others v Russia App nos 55508/07 and 29520/09 (ECtHR 2013) 29

Jerslid v Denmark App no 15890/89 (ECtHR, 23 September 19940) 25

Karatas v Turkey App no 23168/94 (ECtHR, 8 July 1999) 9

Konstantin Markin v Russia App no 30078/06 (ECtHR, 2012) 29

Kruslin v France App no 11801/85 (ECtHR, 24 April 1990) 13

Kafkaris v Cyprus App no 21906/04 (ECtHR, 12 February 2008) 4

Krupko and others v Russia, App no 26587/07 (ECtHR, 26 June 2014) 5

Krone Verlag v Austria App no 27306/07 (ECtHR19 June 2012) 5

Kokkinakis v Greece App no 14307/88 (ECtHR, 25 May 1993) 4

Leroy v France App no 36109/03 (ECtHR, 2 October 2008) 9

Lingens V Austin App no 9815/82 (ECtHR, 8 July 1986) 8, 24, 25, 26

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Le Pen v France App no18788/09 (ECtHR, 5 July 2010) 10

Lindon, Otchakovsky-Laurens and July v France App no 21275/02 (ECtHR, 2007) 3, 4

Malon v United Kingdom App no8691/79 (ECtHR, August 1984) 13

Muller v Switzerland App no 10737/84 (ECtHR, 24 May 1988) 29

McLeod v United Kingdom (1999) 27 EHRR 493 32

Markt intern Verlag GmbH and Klaus Beermann v Germany A 164 (1989) 12 EHRR 161 29

Murphy v Ireland (2004) 38 EHRR 13 26

Mosley v. the United Kingdom (2011) 53 EHRR 30 2, 4

MTE v Hungary App no 22947/13(ECtHR, 2 February, 2016) 24, 26

Nilsen and Johnsen v Norway (2000) 30 EHRR 878 15

Observer and Guardian v United Kingdom App no 13585/88 (ECtHR, 26 April 1979) 7, 31

Olsson v Sweden (1988) 11 EHRR 259 28

Open Door and Dublin Well Woman v Ireland (1993) 15 EHRR 244 32

Print Zeitungsverlag GmbH v. Austria App no 26547/07(ECHtHR, 10 October, 2013) 1, 25

Perineck v Switzerland App no 27510/08 (ECtHR, 15 OCTOBER 2015) 9

Ricci v Italy App no 30210/06 (ECHtHR, 8 October, 2013) 27

Refah Partisi (The Welfare Party) and other v Turkey App no 41340/98 (ECtHR) 3, 13, 32

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Rekvenyi v Hungary App no 25390/94 (ECtHR, 20 MAY 1999) 13

Sener v Turkey App no 26680/95 (ECtHR, 18 July 2000) 9

Serif v Greece (1999) 31 EHRR 561 15

Silver and others v United Kingdom App no 71336/75 (ECtHR 25 March, 1983) 13, 28

Smith v United Kingdom Apps no 33985/96 and 33986/96 (ECtHR, 27 September, 1999) 32

Surek v turkey (ECtHR, July 8, 1999) 6, 30

Thoma v Luxemburg App no 38432/97 (ECtHR, 29 March, 2001) 17, 25

The Sunday Times v United Kingdom App no 6538/74 (ECtHR, 26 April 1979) 7, 28

Tolstoy v UK App no18139/91 (ECtHR, 13 July 1995) 5

Vakfı and Others v Turkey App no 28255/07 (ECtHR, 2014) 27

Verleg v Austin App no 27306/07 (ECtHR, 19 June 2012) 5

Willem v France App no 10883/05 (ECtHR, 16 July 2009) 2

CASES FROM HRC

Coleman v. Australia UN Doc CCPR/C/87/D/1157/2003 (HRC, 10 August 2006) 25

Groot v The Netherlands UN Doc CCPR/C/54/D/578/1994 (HRC, 14 July 1995) 5, 29

Lee v Republic of Korea UN Doc CCPR/C/84/D/1119/2002 (HRC, 23 August 2005) 15

Malcolm Ross v Canada UN Doc CCPR/C/70/D/736/1997 (HRC, 18 October 2000) 8

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Rojas Garcia v Colombia Communication UN Doc CCPR/C/71/D/687/1996 (HRC, 3 April

2001) 32

Robert Faurisson v France UN Doc CCPR/C/58/D/550/1993 (HRC, 8 November 1996)) 11

Tae Hoon Park v Republic of Korea UN Doc CCPR/C/64/D/628/1995(HRC, 3 November 1998)

2, 5

CASES FROM IACtHR

Claude-Reyes v Chile (IACtHR, 19 September 2006) 1, 7

Herrero-Ulloa v Costa Rica (IACtHR, 2 July 2004) 3

Tristant Domoso v Panama (IACtHR, 27 June 2009) 9

CASES FROM ACtHPR

Njaru v Cameroon (2007) AHRLR 21 (ACtHPR 2007) 6, 9

Lohé Issa Konaté v Burkina Faso App no 004/2013 (ACtHPR 2014) 9

Jawara v The Gambia AHRLR 107 (ACtHPR 2000) 9

CASES FROM ECHR

Ekin v France (2001) ECHR 473 29

Mouvement Raelien Suisse v. Switzerland 16354 [2012] ECHR 1598 (GC) (13 July, 2012) 2

xii | P a g e
Vereniging Weekblad Bluf v the Netherlands, Series A vol.306-A (ECHR, 9 February,1955)

31

Wingrove v the United Kingdom App no 17419/90 (ECHR, 25 November, 1996) 15,26

CASES FROM UNHRC

Alexandre Dergachev v Belarus Communication No 921/2000 UN Doc CCPR/C/74/D/921/2000

(2002) 6, 14

Benhadj v Algeria Communication No 1173/2003 UN Doc (2007) 2

Mukong v Cameroon Communication No 458/1991 UN Doc (1994) 6, 13

Marinich v Belarus Communication No 780/1997 UN Doc (2000) 6

Marques v Angola Communication No 1128/2002 UN Doc (2005) 25

CASES FROM AMERICAN COURTS

American Information Corp. v American Infometrics, 139 F (D Md 2001) 20

Barenblatt v United States (1959) 360 US 109, 126 32

Bancroft & Masters INC v Augusta National Inc.223 F.3d (9th Cir. 2000) 21

Brandenburg v Ohio (1969) 95 US 444, 447 7, 31

Calder v. Jones (1984) 465 US 783 21

Cannon Mfg Co v Cudahy Packing Co (1925) 267 US 333 18

xiii | P a g e
Douglas v Jeanette (1942) 319 US 157 17

District of Columbia v. Heller (2008) 554 US 570 27

Dudnikov v Chalk & Vermilion, 514 F.3d 1063 514 (10th Cir. 2008) 21

Far West Capital v. Towne, 46 F.3d 1071, 1079 (10th Cir. 1995) 21

Ginsberg v New York 390 US 629 (1968) 21

Grayned v City of Rockford (1972) 408 US 104 (1972) 4

Garrison v Louisiana (1972) 379 US 64, 67 (1964) 4

Hess v Indiana (1973) 414 US 105, 109 6, 7

International Shoe Co v Washington, (1945) 326 US 310 19

Kolbe v. Hogan 813F 3d 160 (4th Circuit, 2016) 27

Lovell v City of Griffin (1938) 303 US 444 25

McDonald v Chicago (2010) 561 US 742 (2010) 27

Mink v AAA Dev LLC 190 F.3d 333 (5th cir 199) 20

New York Times v Sullivan (1938) 376 US 254 (1964) 8, 25

NAACP v Claiborne Hardware Co (1982) 458 US 886, 928 7

National Association for the Advancement of Colored People v Claiborne Hardware Co (1982)

458 US 886, 910 3

xiv | P a g e
Reno v American Civil Liberties Union (1938) 521 US 844 (1997) 1, 2

Smith v California (1959) 361 US 147, 153-154 4

Smith v. Goguen (1974) 415 US 566 5

Schacht v US (1970) 398 US 58 11

Shelton v Tucker 364 US 479 (1960) 32

Sidney Blumenthal and Jacqueline Blumenthal v. Matt Drudge and America Online, Inc US

District Court of Columbia, 97CV-1968 3

Terminiello v Chicago (1949) 337 US 1, 4 2, 11

Texas v Johnson (1989) 491 US 397, 414 7, 8

Thomas v Collins (1945) 323 US 516 29

Virginia v Black (2003) 538 US 343, 359 2

Whitney v. California (1927) 274 US 357, 376 12

Ward v Rock against Racism 491 US 781 (1989) 18

World-Wide Volkswagen Corp v Woodson (1980) 444 US 286, 297 22

Watts v United States (1927) 394 US 705, 708 (1969) 2

CASES FROM INDIA

Freewheel Ltd v Veda Mitra AIR (1969) 258 32

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Ramjilalmodi v State of Uttar Pradesh AIR 1957 SC 620 32

CASES FROM OTHER JURISDICTIONS

Arslan v Turkey [GC], no 23462/94, 8 July 1999 15, 31

Benhadj v Nigeria Views No. 628/195(2007) 2

Bell v Lever Brothers Ltd [1932] 2 AC 161 18, 19

Cannon v Mfg Co v Cudahy Packing Co (1925) 69 Ed. Adv Ops 308, 45 Sup Ct Rep 250

18

Dagesse v Plant Hotel N.V., 113 F Supp. 2d 211, 221 (D.N.H. 2000) 20

Daimler AG v. Bauman (2014) 134 S Ct 746 19

Ebbew value Urban Area Distt. Council v South Wales Traffic Area Licensing Authority (1951)

2 K. B. 356 18

Google France v Louis Vuitton Malletier C-236/08 to C-238/08 (23 March, 2010) 23

Griffis v Luban, 646 N.W.2d 527, 534 (Minn. 2002) 21

Hector v A.G. of Antigua and Barbuda, (1990) 2 All E.R 103, 106 10

LICRA v Yahoo 169 F Supp.2d.1181 N.D Cal. 2001 32

Mathieu- Mohin and Clerfayt v Belgium judgement of 2 march 1987, series A no. 113 2

O’Grady v Superior Court of Santa Clara 44 Cal Rptr 3d 72 (2006) 139 Cal App 4th 1423 10

xvi | P a g e
Oberschlick v. Austria (no. 2), 1 July1997, § 29 2, 26

People v. La Voie395 P.2d 1001 (1964) 27

Park v. Republic of Korea UN Doc CCPR/C/64/D/628/1995 (3 November,1998) 2, 24

Ricardo Canese v Paraguay, (I/A Court H.R.Merits) August 31, 2004. Series C No. 111 29

Too Much Media, LLC v. Hale, 413 N.J. Super. 135, 142 (App. Div. 2010) 3

Thorgeirson v Iceland App no 13778/88 (EHRR, 25 June, 1992) 11

Zippo Manufacturing Co. v Zippo Dot Corn, Inc., 952 F. Supp. 1124 (W.D. Pa. 1997) 19

3D Systems, Inc. v Aarotech Laboratories, Inc. 160 F.3d 1373 (Fed.Cir.1998) 20

UN DOCUMENTS

UNHRC ‘General Comment 34’ in ‘Article 19: Freedoms of Opinion and Expression’ (2011)

UN Doc CCPR/C/GC/34, para 2

HRC, ‘General Comment 16’ (19 May 1989) UN Doc CCPR/C/21/

UN Economic and Social Council, UN Sub-Commission on Prevention of Discrimination and

Protection of Minorities, ‘Siracusa Principles on the Limitation and Derogation of Provisions in

the ICCPR’ (1984) UN Doc E/CN 4/1984/4 principle 17

UNHRC, ‘Report of the Special Rapporteur on the Promotion and Protection of the Right to

Freedom of Opinion and Expression’ (22 May 2015) UN Doc A/HRC/29/32 (‘UNHRC May

xvii | P a g e
UNCHR ‘Report of the Special Rapporteur on the Promotion and Protection of the Right to

Freedom of Opinion and Expression’ (2011) UN Doc A/HRC/17/27; General Comment 34

HRC, ‘General Comment 34’ (12 September 2011) UN Doc CCPR/C/GC/34 (‘General

Comment 34’)

UNHRC, ‘Report of the Special Rapporteur on the Promotion and Protection of the Right to

Freedom of Opinion and Expression’ (7 September 2012) UN Doc A/67/357

UNHRC, ‘Report of the Special Rapporteur on the Promotion and Protection of Human Rights

and Fundamental Freedoms While Countering Terrorism’ (28 December 2009) UN Doc

A/HRC/13/37 para 17.

UNHRC, ‘Report of the Special Rapporteur on the Promotion and Protection of the Right to

Freedom of Opinion and Expression’ (16 May 2011) UN Doc A/HRC/17/27 (‘UNHRC May

2011 Report’) paras 26, 28; UNHRC, ‘Report of the Special Rapporteur in the Field of Cultural

Rights’ (14 March 2013) UN Doc A/HRC/23/34 (‘UNHRC March 2013 Report’) para 89.

UNCHR ‘General Comment 3’ in ‘Article 19 (Freedom of Opinion and Expression)’ (2011) UN

Doc CCPR/C/GC/34

UNHRC, ‘Report of the Special Rapporteur on the Promotion and Protection of the Right to

Freedom of Opinion and Expression’ (16 May 2011) UN Doc A/HRC/17/27 (‘UNHRC May

2011 Report’)

UNHRC, ‘Report of the Special Rapporteur in the Field of Cultural Rights’ (14 March 2013) UN

Doc A/HRC/23/34
xviii | P a g e
UNHRC, ‘Report of the Special Rapporteur on the Promotion and Protection of the Right to

Freedom of

Opinion and Expression’ (16 May 2011) UN Doc A/HRC/17/27 (‘UNHRC May 2011 Report’)

HRC, ‘General Comment 34’ (12 September 2011) UN Doc CCPR/C/GC/34 (‘General

Comment 34’)

UNHRC, ‘Report of the Special Rapporteur on the Promotion and Protection of the Right to

Freedom of Opinion and Expression’ (17 April 2013) UN Doc A/HRC/23/40 (‘UNHRC April

2013 Report’)

UNHRC General Comment No 34, ‘Article 19: Freedoms of opinion and expression’ (2011) UN

Doc CCPR/C/GC/34

Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on

Civil and Political Rights, UN Doc E/CN 4/1985/4

Johannesburg Principles on National Security, Freedom of Expression and Access to Information

UN Doc E/CN 4/1996/39 (1996),

UNHRC, ‘Report of the Special Rapporteur on the Promotion and Protection of Human Rights

and Fundamental Freedoms While Countering Terrorism’ (28 December 2009) UN Doc

A/HRC/13/37 para 17.

UNHRC, ‘Report of the Special Rapporteur on the Promotion and Protection of the Right to

Freedom of Opinion and Expression’ (16 May 2011) UN Doc A/HRC/17/27 (‘UNHRC May

xix | P a g e
2011 Report’) paras 26, 28; UNHRC, ‘Report of the Special Rapporteur in the Field of Cultural

Rights’ (14 March 2013) UN Doc A/HRC/23/34 (‘UNHRC March 2013 Report’) para 89.

UNCHR ‘General Comment 3’ in ‘Article 19 (Freedom of Opinion and Expression)’ (2011) UN

Doc CCPR/C/GC/34; See also IACHR ‘Annual Report of the Office of the Special Rapporteur

for Freedom of Expression’ (2008) OEA/Ser.L/V/II.134.Doc.5. 25 February 2009 Ch III para66.

UNHRC

UNHRC May 2011 Report (n 36) parad 33-34; UNHRC January 2015 Report (n 8) para 59.

UNHRC, ‘Report of the Special Rapporteur on the Promotion and Protection of the Right to

Freedom of Opinion and Expression’ (16 May 2011) UN Doc A/HRC/17/27 (‘UNHRC May

2011 Report’) paras 26, 28; UNHRC, ‘Report of the Special Rapporteur in the Field of Cultural

Rights’ (14 March 2013) UN Doc A/HRC/23/34

UNHRC March 2013 Report’) para 89 UNHRC, ‘Report of the Special Rapporteur on the

Promotion and Protection of the Right to Freedom of

Opinion and Expression’ (16 May 2011) UN Doc A/HRC/17/27 (‘UNHRC May 2011 Report’)

paras 26, 28

HRC, ‘General Comment 34’ (12 September 2011) UN Doc CCPR/C/GC/34 (‘General

Comment 34’) paras 22, 33–34

UNHRC, ‘Report of the Special Rapporteur on the Promotion and Protection of the Right to

Freedom of Opinion and Expression’ (17 April 2013) UN Doc A/HRC/23/40 (‘UNHRC April

2013 Report’) para 29

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UNHRC General Comment No 34, ‘Article 19: Freedoms of opinion and expression’ (2011) UN

Doc CCPR/C/GC/34 [25]

HRC, ‘General Comment 34’ (12 September 2011) UN Doc CCPR/C/GC/34 (‘General

Comment 34’) para 46

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Michael Curtis, Free Speech, ‘The People’s Darling Privilege’ (Michael Kent Curtis 2000) 394–

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http://pcmlp.socleg.ox.ac.uk/wp> accessed 14 October, 2016

Saleem Kassim, ‘Twitter Revolution: How the Arab Spring was Helped by Social Media’ (3 July

2012) <http://mic.com/articles/10642/twitter-revolution-how-the-arab-spring-was-helped-by-

socialmedia#.G7RXVc5H3> accessed 5 October, 2016

xxiii | P a g e
Jonathan Kaiman, ‘Hong Kong Protest Brings Crisis of Confidence for Traditional Media’ The

Guardian (14 June 2014) <http://www.theguardian.com/world/2014/oct/29/hong-kong-protests-

confidence media> accessed 17 January 2016.

IACHR, Annual Report of the Office of the Special Rapporteur for Freedom of Expression 2008.

OEA/Ser.L/V/II.134.Doc.5. 25 February 2009. Chapter III,

<http://www.cidh.oas.org/annualrep/2008eng/Annual%20Report%202008-%20RELE%20-

%20version%20final.pdf>accessed 04 October, 2016

Commentary to the Declaration on the Right and Responsibility of Individuals, Groups and

Organs of Society to Promote and Protect Universally Recognized Human Rights and

Fundamental Freedom.

<http://www.ohchr.org/Documents/Issues/Defenders/CommentarytoDeclarationondefendersJuly

2011.pdf> accessed on 07 October, 2016

Center for Law and Democracy, Restricting Freedom of Expression: Standards and Principles,

Background Paper for Meetings Hosted by the UN Special Rapporteur on Freedom of Opinion

and Expression, available at <http://www.law-democracy.org/wp-

content/uploads/2010/07/10.03.Paper-on-Restrictions-on-FOE.pdf>accessed 10 October, 2016

OTHER SOURCES:

Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism

(Arts 13 and 29 American Convention on Human Rights), Advisory Opinion OC-5, Inter-

American Court of Human Rights Series A No 5 (13 November 1985) 8788/09 (E)

xxiv | P a g e
Amnesty International, ‘ Written Contribution to the Thematic Discussion on Racist Hate Speech

and Freedom of Opinion and Expression organized by the United Nations Committee on

Elimination of Racial Discrimination’ (28 August 2012)

Re January 11, 2013 Subpoena by the Grand Jury of Union County, New Jersey (Supreme. Ct. of

New Jersey, Union Cou Compulsory Membership of Journalist’s Association, Inter-American

Court, Advisory Opinion OC-5/85, 13 November, 1985; See also The Free Flow of Information

Act 2013, (USA)

Criminal Div. Docket No. 13-001, April 12, 2013

IACHR ‘Annual Report of the Office of the Special Rapporteur for Freedom of Expression’

(k2008) OEA/Ser.L/V/II.134.Doc.5. 25 February 2009 Ch III para 66. UNHRC,

Johannesburg Principles on National Security, Freedom of Expression and Access to

Information, Principle 6; Special Rapporteur, HRC 17/27

The Johannesburg Principles on National Security, Freedom of Expression and Access to

Information <https://www.article19.org/data/files/pdfs/standards/joburgprinciples.pdf> access on

14 October, 2016

xxv | P a g e
 STATEMENT OF RELEVANT FACTS

Amostra

1. A small country consisting of two religious groups namely Yona (30%) and Zasa (70%).

Amostra has an unstable political history; in the past five years, discrimination between

the two major groups has mainly caused this instability. There have been frequent non-

violent protests and occasional skirmishes between the Yona protestors and Zasa counter-

protestors that have resulted in arrests of protestors primarily from the Yona sect.

SIA

2. Stability and Integrity Act of 2014 (hereinafter referred as ‘SIA’) is a stringent

controversial legislation prohibiting extremist or anti-patriotic statements. This Act is

applicable to any relevant statement published in Amostra or be addressed to Amostra

residents.

ESA

3. Election Safety Act of 2016 (hereinafter referred as ‘ESA’) is an election centric

legislation prohibiting participation at political demonstrations of more than ten people

and also spreading any message of sedition or seeking to incite hatred, violence or disrupt

the democratic process in order to prevent public disorder.

SeeSey

4. SeeSey is a popular worldwide social media platform having its headquarter and hosts in

the country Sarranto. SeeSey accounts are free and the site is publicly accessible and

xxvi | P a g e
 visible. SeeSey shows content to users based upon two factors (1) the user’s self-selected

“Home Location” (the most recent and the most popular post receive the most visibility,

and (2) contents from accounts that the user has added to users “SeeMore” list. SeeSey

has the ability to block individual posts and the “SeeMore” option but this ability is

limited to country or specific countries. This allows users to post content and also share

or comment on posts they see. SeeSey does not maintain a media operating license in

Amostra, and the Ministry of Defence has never asked SeeSey to register.

SeeSALES

5. A subsidiary company of SeeSey having it’s headquarter and sole office in Amostra.

SeeSALES is independently operated in Amostra to promote the use of SeeSey by

Amostra businesses, including the purchase of paid ads on SeeSey. SeeSey has many

subsidiaries around the world, and does not provide any of them access to the data stored

on SeeSey servers.

Sarranto

6. Sarranto is a large, affluent, politically stable country located more than 1000 miles from

Amostra where SeeSey has its headquarters and which has significant influence in

international affairs and global markets. It has a large number of immigrant populations

from a number of countries, including Amostra.

The Ex-Amostra Times (‘The Times’)

7. The Ex-Amostran Times (‘The Times’) is a Sarranto-based domestic newspaper popular

with Amostran immigrants. It has a website which is visible to users wherever they are

xxvii | P a g e
 located and also has an account on SeeSey where it posts selected articles from its

website content.

Blenna Ballaya:

8. Blenna Ballaya is a citizen of Amostra who is resident in Sarranto. She is a famous

blogger who regularly writes about political matters on her blog. She is widely regarded

as an insightful and bold writer on political developments in Amostra.

February 15, 2016

9. During a protest on February 15, 2016 a Yona protestor was killed by a blow to the head

possibly from police forces or Zasa counter-protestors.

June 6, 2016

10. On June 6, 2016 the Prime Minister of Amostra announced that a general election would

be held in 60 days, on August 5 which brought a period of relative calm in Amostra.

Blenna Ballaya’s Column published on July 7, 2016

11. The Ex-Amostra Times (“The Times”) paid Ballaya to write a one-time column as an

opinion contributor. Her column (“An Open Letter to the Oppressors”) was published on

July 7, 2016, in The Times print edition, on the Times website, and on the Times’

account on SeeSey. She criticized the Prime Minister and other members of Zasa sect for

corruption and human rights violations towards the Yona people in her writing. She

concluded her writing by echoing calls by other anti-government Amostrans for a

peaceful Day of Resistance on August 1.

xxviii | P a g e
Peaceful Day of Resistance

12. On the called day of resistance Ballaya travelled to Amostra to attend the peaceful public

protest, at which a small portion of the Yona sect caused chaos by setting fire to a Zasa

religious building. Although the attackers chanted the words of a famous Yona unity song

which Ballaya had used in her column, there was no evidence that they had read her

column.

Prosecution of Ballaya and Civil Order against SeeSey

13. Following the riots and violence, Ballaya was arrested as an organizer of the protest in

connection with her column. Ballaya was convicted under Sections A and B of the SIA

and Section 3 of the ESA. An order against SeeSey was issued by an Amostran Court

requiring it to remove Ballaya’s column and post an apology. Both Ballaya’s conviction

and the order against SeeSey were upheld in Amostra’s Supreme Court, exhausting their

domestic appeals.

xxix | P a g e
 STATEMENT OF JURISDICTION

Ballya & SeeSey (hereinafter “Applicants”) and state of Amostra (hereinafter “Respondent”)

hereby submit this dispute before this honorable court, the Universal Freedom of Expression

Court, a Special Chamber of Universal Court of Human Rights. This case concerns the

provisions of the Universal Declaration of Human Rights (hereinafter “UDHR”)1. No law,

domestic or international, restricts Applicants’ standing to bring these challenges.2The applicants

have exhausted all local remedies.3 This Court has jurisdiction over Ballaya and SeeSey, as

Applicants, and the State of Amostra, as Respondent.4

Both Applicants & Respondent request this Honorable Court to adjudge the issue in accordance

with relevant international law, including the International Covenant on Civil and Political

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

law.

1
Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III).

2
Price Media Law Moot Court Competition Rules, 2014-2015, 5.4.
3
Moot proposition, para 21.

4
Price Media Law Moot Court Competition Rules, 2014-2015, 5.4.

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 QUESTIONS PRESENTED

ISSUE-A: Whether Amostra’s prosecution of Ballaya under the SIA violates international

principles, including Article 19 of Universal Declaration of Human Rights (“UDHR”) and

Article 19 of the International Covenant on Civil and Political Rights (“ICCPR”).

ISSUE-B: Whether Amostra’s prosecution of Ballaya under the ESA violates international

principles, including Article 19 UDHR and Article 19 of the ICCPR.

ISSUE-C: Whether Amostra has jurisdiction to obtain and enforce the civil order against SeeSey

in Amostra and Sarranto.

ISSUE-D: Whether Amostra’s civil order against SeeSey violates international principles,

including Article 19 of UDHR and Article 19 of the ICCPR.

xxxi | P a g e
 SUMMARY OF ARGUMENTS

ISSUE-A

State guarantees free circulation of individual’s freedom of expression and speech is protected

even it is shocking, unpopular or disturbing in nature. Since political speech enjoys a wider

protection as debate on political interest, Ballaya’s statement is protected for being purely of

political nature. A blogger hold the status of a journalist and her statement is protected under the

state’s journalistic shield. Moreover, state cannot impose restriction on mere criticism relating to

public interest and imprisonment is prohibited in this regard.

The SIA is not sufficiently precise as the terms of the act is not adequately prescribed and vague

laws provide officials unrestricted power in arbitrary decision making. Not stipulating the terms

of imprisonment and the amount of fines affects the adequacy of its safeguard. A restriction can

be imposed on ground of public order or national security. Ballaya’s speech was not intended to

incite violence or produce imminence disorder as there was no nexus between the occurrence and

the violence and there was no existence of imminent threat to national security or territorial

security. There was no pressing social need as there was no imminent violence and public figure

should tolerate more criticism. Imprisonment is not justified as a proportionate measure.

ISSUE -B

Freedom of Expression includes the right to criticize the government and any meaningful and

necessary criticism of the government cannot be suppressed under the shield of restriction. Here

Ballaya’s right to criticize the government was violated since she was penalized for the column

which contained certain criticisms against the government. Prohibition which inhibits

discussions on matters of public concern is bad in the eyes of law and therefore cannot be

xxxii | P a g e
imposed. Besides there was no pressing social need to prosecute Ballaya as her posts were not

hate speech. Statements made by Ballaya were not intended to incite any hatred or violence and

therefore cannot be termed as prohibited speech. Moreover, in order to be valid, any restriction

on the right to freedom of expression must meet a strict three-part test. A restriction which is

neither prescribed by law nor necessary and which does not serve any legitimate purpose cannot

be imposed. Here, Ballaya’s prosecution was not prescribed by law as the terms of ESA were

imprecise. It also did not serve any legitimate purpose as the purpose of enacting the law was to

shut down the voices against the government. Besides the enactment of the law was not

necessary since it was made during a period of calm. Hence, Ballaya’s prosecution under the

ESA is violative of her right to freedom of expression as guaranteed under several international

principles, including UDHR and ICCPR.

ISSUE –C

From Amostran perspective, SeeSey is a foreign social media entity, headquartered in Sarranto,

where it preserves all of its global data. Thereby, exercising jurisdiction over SeeSey without

proper ground will be an encroachment on Sarranto’s sovereign authority under international

law. Despite SeeSALES being an owned subsidiary of SeeSey, it is an independently operated

company having a separate legal entity of its own. Therefore, SeeSey cannot be subject to

Amostra’s jurisdiction by mere presence of its subsidiary in the forum state. Besides,

accessibility of SeeSey does not constitute ‘minimum contact’ required for establishing personal

jurisdiction due to passive and non-interactive nature of the website. Given the above

circumstances, it is submitted that Amostra does not have any legitimate right to exercise

jurisdiction over SeeSey.

xxxiii | P a g e
ISSUE D

Civil order has restricted the freedom of expression of SeeSey both its capacity as an online

based social media and an intermediary. SeeSey is a passive and neutral internet service provider

which has wide legal protection in case of publishing news similar to that of press and online

news portal. Any unnecessary restriction is not allowed since it will cause a chilling effect.

SeeSey being an intermediary cannot identify the legality of its contents. So, without any specific

ground, the takedown order has violated Article 19 of the UDHR and the ICCPR.

Moreover, the civil order did not pass the three part test under Article 29(2) of the UDHR. The

order was not prescribed by law and the Act itself was not sufficiently precise and foreseeable.

The terms constituting extremist speech under section A and illegal materials under section C are

not specific, foreseeable and accessible. Again, the term offensive mentioned in the civil order is

wide and not well defined. The Act lacked legitimate aim as it is impractical to impose

restriction upon freedom of expression. Moreover, it is technically impossible for SeeSey to

remove the contents worldwide. The restriction was not proportionate as there was no proximate

link between the Act and the legitimate aim to prevent an imminent lawless action. There was no

pressing social need to impose such a restriction.

xxxiv | P a g e
 ARGUMENTS

ISSUE-A: AMOSTRA’S PROSECUTION OF BALLAYA UNDER THE SIA VIOLATES

INTERNATIONAL PRINCIPLES, INCLUDING ARTICLE 19 OF THE UDHR AND

THE ICCPR

Ballaya was prosecuted for violating sections A and B of the Stability and Integrity Act of 2014.

Applicant submits that Ballaya’s prosecution violates Article 19 of the UDHR and the ICCPR [I]

and Restriction imposed by prosecution is not permissible under Article 29(2) of the UDHR [II].

I. Ballaya’s prosecution violates Article 19 of the UDHR and ICCPR respectively

The freedom of expression is essential5 and the foundation stone for every free and democratic

society.6 It is of paramount importance7 and the most significant fundamental human rights

recognized around the world.8 The right has a wide scope and it extends to the Internet9 and on

5
UNHRC ‘General Comment 34’ in ‘Article 19: Freedoms of Opinion and Expression’ (12 September 2011) UN
Doc CCPR/C/GC/34 para 2. Benhadj v. Algeria Views No. 628/1995 (2007), Tae Hoon Park v Republic of Korea
Communication No 628/1995, UN Doc CCPR/C/64/D/628/1995 (1998) (HRC).

6
UNHRC, ‘General Comment 34’ (12 September 2011) UN Doc CCPR/C/GC/34 (‘General Comment 34’) para 2.
See also Bowman v UK App no 24839/94 (ECtHR, 19 February 1998) [42]; Claude-Reyes v Chile, Merits,
Reparations and Costs Judgment (IACtHR, 19 September 2006) para 85.

7
Tae-Hoon Park v Republic of Korea Communication No 628/1995 UN Doc CCPR/C/57/D/628/1995 (1998) para
10.3.

8
Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human
Rights, as amended) (ECHR) art 10(1); American Declaration of the Rights and Duties of Man, OAS Res XXX
adopted by the Ninth International Conference of American States (1948) reprinted in Basic Documents Pertaining
to Human Rights in the International System OEA/Ser L V/11.82 Doc 6 Rev 1(American Convention) (1992) art 13;
African Charter on Human and Peoples’ Rights (adopted 27 July 1981, entered into force 21 October 1986) (1982)
21 ILM 58 (ACHPR) art 9.

9
Reno v American Civil Liberties Union 521 US 844 (1997); O'Grady v Superior Court of Santa Clara County 44
Cal Rptr 3d 72 (2006) 139 Cal App 4th 1423; UNCHR, ‘Report of the Special Rapporteur on the Promotion and
Protection of the Right to Freedom of Opinion and Expression’ (2011) UN Doc A/HRC/17/27; Richard Clayton and
Hugh Tomlinson, The Law of Human Rights (1st edn, OUP 2000) 1059; UNCHR 'General comment no. 34 Article
19 Freedoms of opinion and expression' (2011) CCPR/C/GC/34
<http://www.refworld.org/docid/4ed34b562.html> accessed 6 October 2016; Eric Barendt, Freedom of Speech (2th
edn, Oxford University Press Inc 2007).

1|Page
other electronic sources.10 The right encompasses even unpopular and ugly speech11 aiming at

promoting and encouraging debate in democratic society.

(a) Political Speeches are protected from restriction imposed by the government

Freedom of political expression enjoys wider protection since it form the bedrock of a

democratic system12 and stifling on political matters might endanger the stability of the

community.13 Even Political hyperbole is not a true threat that can be suppressed.14 There is little

scope for imposing restrictions on freedom of expression in political speech or debate on matters

of public interest.15

Ballaya’s statement, ‘An Open Letter to the Oppressors’ is of purely political nature, it attracts a

wider protection under Article 19.16

Moreover, the status of press freedom and right to access to the information corollaries to the

general right to freedom of expression and opinion and designate the particular use of this right

10
Reno v ACLU 521 US 844 (1997); UNCHR, ‘Report of the Special Rapporteur on the Promotion and Protection
of the Right to Freedom of Opinion and Expression’ (2011) UN Doc A/HRC/17/27; General Comment No. 10,
CCPR/C/GC/10 adopted on 29 June 1983 para 2; Richard Clayton and Hugh Tomlinson, The Law of Human Rights
(1st edn, OUP 2000) 105; UNCHR 'General comment no. 34 Article 19 Freedoms of opinion and expression' (2011)
CCPR/C/GC/34 <http://www.refworld.org/docid/4ed34b562.html> accessed 2 October 2016; Eric Barendt,
Freedom of Speech (2th edn, Oxford University Press Inc 2007).

11
Terminiello v Chicago 337 US 1, 4 (1949); Handyside v United Kingdom (1976) 1 EHRR 737 para 49.

12
Mathieu- Mohin and Clerfayt v. Belgium judgement of 2 march 1987, series A no. 113, p. 22, 47 and the Lingens
v Australia judgement of 8 July 1986, Series A no. 103-B, p. 26, 41-42.

13
Whitney v California 274 US 357, 376 (1927).

14
Watts v United States 394 US 705, 708 (1969); Virginia v Black 538 US 343, 359 (2003).

15
Willem v France App no. 10883/05, 33 (ECtHR, 16 July 2009); Mouvement Raelien Suisse v. Switzerland App no
16354/06 (ECtHR, 3 July 2012) .

16
Mosley v the United Kingdom (2011) 53 EHRR 30.

2|Page
of expression on public media platform.17 Bloggers writing in social media18are entitled to

journalistic protection.19

Ballaya, a blogger and one time columnist,20 engaged in frequent publication of newsworthy

material, opinion writer for newspaper21 and used social media as vehicle of political expression;

therefore she is protected by journalistic shield of law.22

(b) Restrictions on mere criticism have chilling effect on freedom of expression

Freedom of expression is highly protected by international instruments23 and exceptions to

freedom of expression must be interpreted narrowly.24 State ensures healthy and free exchange

of ideas and news in pluralist, tolerant and democratic society.25Even speech that offends,

shocks, or disturbs,26 or speech that embarrasses or coerces others into action27 is protected.

17
Iginio Gagliardone and others, ‘World trends in freedom of expression and media development’ (UNESCO
Publishing, 2014) <http://unesdoc.unesco.org/images/0023/002349/234933e.pdf> accessed 1 October 2016.

18
Compulsory Membership of Journalist’s Association, Inter-American Court, Advisory Opinion OC-5/85, 13
November, 1985; See also The Free Flow of Information Act 2013, (USA).
19
Sidney Blumenthal and Jacqueline Blumenthal v. Matt Drudge and America Online, Inc. U.S. District Court,
District of Columbia, Case Number, 97 CV-1968.

20
Moot proposition, paras 15, 16.

21
Too Much Media, LLC v. Hale, 413 N.J. Super. 135, 142 (App. Div. 2010).

22
Re January 11, 2013 Subpoena by the Grand Jury of Union County, New Jersey (Supreme. Ct. of New Jersey,
Union County, Criminal Div., Docket No. 13-001, Apr. 12,2013).

23
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March
1976) 999 UNTS 171 (ICCPR) art 19; Convention for the Protection of Human Rights and Fundamental Freedoms
(European Convention on Human Rights, as amended) (European Convention) art 10(2).
24
Oberschlick v. Austria (no. 2), 1 July 1997, § 29; Lindon, Otchakovsky-Laurens and July v. France [GC], nos
21279/02.

25
Herrero-Ulloa v Costa Rica IACtHR (2004) Series C No 107 [113].

26
Handyside v United Kingdom (1976) 1 EHRR 737, para 4. See also Freedom and Democratic Party (ӦZDEP) v
Turkey (2000) 31 EHRR 27, para 37; Refah Partisi v Turkey (2003) 37 EHRR 1, para 89; Giniewski v France (2006)
45 EHRR 23, para 43.

27
National Association for the Advancement of Colored People v Claiborne Hardware Co 458 US 886, 910 (1982).

3|Page
Excessive criminalization of mere criticism results in a chilling effect on public debate and

detracts from the development of a tolerant, pluralist and democratic society. 28

Besides, threat of criminal sanctions or punitive fines would create a chilling effect in this

regard.29 Wrongful criminal conviction30and imposition of a prison sentence has a significant

chilling effect.31

II. Restriction imposed by prosecution is not permissible under Article 29(2) of the UDHR

According to three-part test, a restriction on freedom of expression is not justified if it is i)

prescribed by law, ii) pursues a legitimate aim and iii) is necessary in a democratic society.32

(a) The SIA is not prescribed by law

The ECtHR held that to be prescribed by law, a statute must be adequately accessible and

formulated with sufficient precision33 to enable citizens to regulate his conduct.34 It needs to be

28
UNHRC, ‘Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion
and Expression’ (16 May 2011) UN Doc A/HRC/17/27 (‘UNHRC May 2011 Report’) paras 26, 28;

29
Mosley v United Kingdom (2011) 53 EHRR 30.

30
Smith v California 361 US 147, 153-154 (1959); Garrison v. Louisiana 379 US 64, 67 (1964).

31
Belpietro v Italy judgment App no 43612/10 (ECtHR, 24 September 2013)

32
Handyside v United Kingdom App no 5493/72 (ECtHR, 7 December 1976); The Sunday Times v United Kingdom
App no 13166/87 (ECtHR, 26 November 1991); Éditions Plon v France App no 58148/00 (ECtHR, 18 May 2004)

33
UNHRC, ‘General Comment 16’ (19 May 1989) UN Doc CCPR/C/21/Rev 1 paras 3, 8; Müller v Switzerland App
no 10737/84 (ECtHR, 24 May 1988) (‘Müller’) para 29; Kokkinakis v Greece App no 14307/88 (ECtHR, 25 May
1993) (‘Kokkinakis’) para 40; Lindon, Otchakovsky-Laurens and July v France App no 21275/02 (ECtHR, 22
October 2007) (‘Lindon’) para 41; Editorial Board of Pravoye Delo and Shtekel v Ukraine App no 33014/05
(ECtHR, 5 August 2011) (‘Editorial Board’) para 52; See also UN Economic and Social Council, UN Sub-
Commission on Prevention of Discrimination and Protection of Minorities, ‘Siracusa Principles on the Limitation
and Derogation of Provisions in the ICCPR’ (1984) UN Doc E/CN 4/1984/4 principle 17; UNHRC, ‘General
Comment 34’ (12 September 2011) UN Doc CCPR/C/GC/34 (‘General Comment 34’) paras 24–25; UNHRC,
‘Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and
Expression’ (22 May 2015) UN Doc A/HRC/29/32 (‘UNHRC May 2015 Report’) para 47.

34
Grayned v City of Rockford 408 US 104 (1972); Editorial Board of Pravoye Delo and Shtekel v Ukraine App no
33014/05 (ECtHR, 5 August 2011) (‘Editorial Board’) para 52; See also Kafkaris v Cyprus App no 21906/04
(ECtHR, 12 February 2008) 140. The Sunday Times v. United Kingdom App no 6538/14 (ECtHR, 26 April 1979)

4|Page
sufficiently accessible, foreseeable and must contain adequate safeguard.35 The SIA is not

sufficiently precise36 as terms ‘defamation’, ‘inciting hatred’, ‘undermining the authority’,37 are

illegal for vagueness as it does not adequately explain or state what behavior the law is meant to

affect.38 Vague or overbroad laws will be abused as it gives the officials discretionary powers

that leave too much room for arbitrary and discriminatory enforcement39 and widely drafted

restrictions on speech have a chilling effect on constructive debate.40

Moreover, stipulating a maximum punishment or providing guidelines on sentencing are

safeguards against unfettered discretion.41The provisions of SIA are insufficiently precise as no

maximum punishment is prescribed and merely stating ‘fines and prison sentence’42 affects the

adequacy of its safeguards.43

30; Freedom of expression, media law and defamation, <http://www.freemedia.at/newssview/article/ipimldi-release-

35
Sunday Times v United Kingdom (1979–80) 2 EHRR 245 [49].

36
Krupko and others v Russia App no 26587/07 (ECtHR, 26 June 2014) [47], [11]; Bayatyan v Armenia, App no
23459/03 (ECtHR, 7 July 2011) [113]; UNHRC General Comment No 34, ‘Article 19: Freedoms of opinion and
expression’ (2011) UN Doc CCPR/C/GC/34 [25]; de Groot v The Netherlands Communication No 578/1994 (HRC
UN Doc CCPR/C/54/D/578/1994, 14 July 1995); Tae Hoon Park v Republic of Korea Communication No 628/1995
(HRC, UN Doc CCPR/C/64/D/628/1995, 3 November 1998).

37
Moot proposition, para 10.

38
What does it mean when a law is ‘void for vagueness’ or ‘overbroad’? <http://www.rotlaw.com/legal-
library/what-does-it-mean-when-a-law-is-void-for-vagueness-or-overbroad/> accessed on 15 October 2016.

39
Smith v. Goguen 415 US 566 (1974); Limitations <https://www.article19.org/pages/en/limitations.html> Accessed
on 15 October 2016.

40
UNHRC, ‘General Comment 34’ (12 September 2011) UN Doc CCPR/C/GC/34 (‘General Comment 34’) para
46.

41
Tolstoy Miloslavsky v UK App no 18139/91 (ECtHR, 13 July 1995) paras 50–51; Independent News and Media
and Independent Newspapers Ireland Ltd v Ireland App no 55120/00 (ECtHR, 18 June 2005) para 115; Krone
Verlag v Austria App no 27306/07 (ECtHR, 19 June 2012) para 61.

42
Moot proposition, para 10.

43
Moot proposition, para 10.

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 (b) The restriction didn’t pursue a legitimate aim as not threatened the public order

Free speech can only be abridged in limited, legitimate44 and particular circumstances.45

Limitation on freedom of speech is only permitted when public order, national security, the

rights or reputations of others is at stake.46Restrictions imposed on Ballaya’s speech are not

legitimate as it was not intended to produce, or be likely to produce, imminent disorder.47

The ground of protecting public order cannot be satisfied since the statement cannot be

categorized as inciting to violence48 as Ballaya has no tendency to incite violence.49 A nexus

must be established between the expression and the occurrence of violence.50 In the present case,

it is not proved that the attacker had read the column. Therefore, nexus is not established.

National security is not invoked to justify measures limiting certain rights as there is no threat to

existence of the nation or its territorial integrity or political independence against force or threat

of force.51

44
Njaru v Cameroon (2007) AHRLR 21 (ACHPR 2007), para 6,4. 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 (3).

45
Njaru v Cameroon (2007) AHRLR 21 (ACHPR 2007), para 6.4; Handyside v United Kingdom (1976) 1 EHRR
737, para 49. See also Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism
(Arts 13 and 29 American Convention on Human Rights), Advisory Opinion OC-5, Inter-American Court of Human
Rights Series A No 5 (13 November 1985).

46
Alexandre Dergachev v Belarus Communication No 921/2000 UN Doc CCPR/C/74/D/921/2000 (2002), para 8;
Mukong v Cameroon Communication No 458/1991 UN Doc CCPR/C/51/D/458/1991 (1994), para 9.7; Vladimir
Petrovich Laptsevich v Belarus Communication No 780/1997 UN Doc CCPR/C/68/D/780/1997 (2000), para 8.2.
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 (3).

47
Hess v Indiana 414 US 105, 109 (1973).

48
Fatullayev v Azerbaijan App no 40984/07 (ECtHR, 22 April 2010) para 116; Surek and Ozdemir v Turkey App
nos 23927/94 and 24277/94 (ECtHR, 8 July 1999) para 63; Erdogdu v Turkey no 25723/94 ECHR 2000 VI para 71.

49
Patterson v Collorado 205 US 454 (1907).

50
Brandenburg v Ohio [1969] 395 US [444], [447]; Surek v Turkey App no 26682/95 (ECtHR, 8 July 1999).
51
‘Siracusa Principles on the Limitation and Derogation of Provisions in the ICCPR’ (1984) UN Doc E/CN
4/1984/4 principle 29.

6|Page
 (c). Restriction imposed by prosecution is not necessary in a democratic society

Any interference is necessary in a democratic society if it: (1) corresponds to a pressing social

need; and (2) is proportionate to the legitimate aim pursued. 52

(i) The restriction doesn’t serve Pressing Social Need

Pressing social need53 requires a fair balance between the general and individual interests at

stake. Pressing social need arises where the speaker intended to incite imminent violence and

was likely to incite such violence.54

Restrictions are not necessary as the statement of Ballaya is purely political speech55 as adequate

functioning of democracy requires the greatest possible circulation of opinions and ideas on

matters of public interest.56 In case of discussion on political matters, state enjoys narrow margin

52
Handyside v UK (1976) 1 EHRR 737. para 48; HRC, ‘General Comment 34’ (12 September 2011) UN Doc
CCPR/C/GC/34 (‘General Comment 34’) paras 22, 33–34; UNHRC, ‘Report of the Special Rapporteur on the
Promotion and Protection of the Right to Freedom of Opinion and Expression’ (17 April 2013) UN Doc
A/HRC/23/40 (‘UNHRC April 2013 Report’) para 29; Delfi AS v Estonia App no 40287/98 (ECtHR, 16 June 2015)
para 131.

53
Handyside v United Kingdom App no 5493/72 (ECtHR, 7 December 1976); The Sunday Times v United Kingdom
App no 6538/74 (ECtHR, 26 April 1979); Observer and Guardian v United Kingdom App no 13585/88 (ECtHR, 26
April 1979).

54
Brandenburg v Ohio (1969) 95 US 444, 447; Hess v Indiana (1973) 414 US 105, 108; NAACP v Claiborne
Hardware Co (1982) 458 US 886, 928; Michael Curtis, ‘Free Speech, The People’s Darling Privilege’ (2000) 394,
397; James Weinstein, ‘Extreme Speech and Democracy’ (OUP 2010) 41; Susan Gilles, ‘Brandenburg v State of
Ohio: An “Accidental”, “Too Easy”, and “Incomplete” Landmark Case’ (2010) 38 Capital University Law Review
517, 522–525; Lucas Powe, ‘Brandenburg: Then and Now’ (2011) 44 Texas Tech Law Review 69, 75–77.

55
Moot proposition, para 18.

56
Kimel v Argentina May 3, 2008. Series C No 177. para. 57 and 87; I/A Court H. R., Case of Claude-Reyes et al v
Chile September 19, 2006. Series C No 151. para. 84, 86 and 87; I/A Court H. R., Case of Palamara-Iribarne v
Chile November 22, 2005. Series C No 135. para. 83; I/A Court H. R., Case of Herrera-Ulloa v Costa Rica July 2,
2004. Series C No 107 para 127.

7|Page
of appreciation57 as the scope of FOE and Privacy cannot be restricted by reference to a ‘margin

of appreciation’.58

Public figures should tolerate a greater degree of criticism.59 The alleged statement of Ballaya

gave rise to a political debate and created no threat of imminent danger.60

Besides, one should be able to exercise artistic expression61 and this right extends to deeply

offensive statements or commentary62 on public affairs63 and the song used in Ballaya’s column

is a famous Yona unity song and of artistic nature.

(ii) Restriction is not proportionate with legitimate aim pursued

The government may not prohibit the expression of an idea simply because society finds the idea

itself offensive or disagreeable’.64Proportionality requires that states place no greater limitations

on rights than necessity to achieve the legitimate aim.65 The nature and severity of the

57
Castelles v Spain App no 11798/85 (ECtHR, 23 April 1992); Seylon v Turkey App no 23556/94 (ECtHR, 8 July
1999).

58
IlmariLänsman, et al v Finland Communication No 511/1992, Views adopted on October 1993; UNCHR,
‘General Comment 34’ in ‘Article 19 (Freedom of Opinion and Expression)’ (2011) UN Doc CCPR/C/GC/34.
59
New York Times v Sullivan 376 US 254 (1964); Lingens v Austria App no 9815/82 (ECtHR, 8 July 1986); Aubry
v. Éditions Vice-Versa inc [1998] 1 SCR 591.

60
Incal v Turkey (2000) 29 EHRR 499; Brandenburg v Ohio 395 US 444 (1969).

61
Federative Republic of Brazil, Supreme Federal Tribunal. Judgment of August 1, 2011. Extraordinary Remedy.
[414],[426] Santa Catarina,<http://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=AC&docID=628395>
accessed 17 October 2016.
62
Ross v Canada Communication No 736/97, UN Doc A/56/40 vol. 2 (2001) (HRC); UNRC, Report of the Special
Rapporteur in the field of cultural rights, Addendum: Mission to the Russian Federation (16-26 April 2012), 11
March 2013, A/HRC/ 23/34/Add. 1.

63
Fernando v Sri Lanka Communication No 1189/20030, UN Doc CCPR/C/83/D/1189/2003 (2005) (HRC).

64
Texas v Johnson 491 US 397 414 (1989).

65
Malcolm Ross v Canada UN Doc CCPR/C/70/D/736/1997 (HRC, 18 October 2000) (‘Malcolm Ross’) para 11.5;
UNHRC, ‘Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental
Freedoms While Countering Terrorism’ (28 December 2009) UN Doc A/HRC/13/37 para 17.

8|Page
punishment are relevant in determining the proportionality pursued to the legitimate aim.66 The

ECtHR held that a two year jail term for hate speech was an ‘extremely harsh penalty’.67

Arbitrary Criminal detention68 or incarceration69 is never a proper or legitimate punishment for

violating a free speech restriction.70

In the present case Ballaya was given three years of imprisonment as punishment71 which is

clearly disproportionate to the legitimate aim pursued as Imprisonment can ‘rarely be justified as

a proportionate measure’.72

ISSUE-B: AMOSTRA’S PROSECUTION OF BALLAYA UNDER THE ESA IS

VIOLATIVE OF INTERNATIONAL PRINCIPLES, INCLUDING ARTICLE 19 OF THE

UDHR AND OF THE ICCPR:

The freedom of expression, universally acknowledged73 as both a fundamental and foundational

human right, is not only the cornerstone of democracy, but indispensable to a thriving civil

66
Leroy v France App no 36109/03 (ECtHR, 2 October 2008) (‘Leroy’) para 47; Balsyte-Lideikiene v Lithuania
App no 72596/01 (ECtHR, 4 December 2008) (‘Balsyte-Lideikiene’) paras 83–85; Perincek v Switzerland App no
27510/08 (ECtHR, 15 October 2015) (‘Perincek’) para 124.

67
Gündüz v Turkey App no 3571/97 (ECtHR, 4 September 2003) (‘Gündüz’) para 52. See also Perincek v
Switzerland App no 27510/08 (ECtHR, 15 October 2015) (‘Perincek’) para 124.
68
Lohé Issa Konaté v Burkina Faso (2014) Application No 004/2013 (ACHPR 2014) para 165.

69
Njaru v Cameroon (2007) AHRLR 21 (HRC 2007) para 6.4.

70
Njaru v Cameroon (2007) AHRLR 21 (ACHPR 2007), para 6.4. See also Jawara v The Gambia (2000) AHRLR
107 (ACHPR 2000), paras 58–59. See also Tristant Domoso v Panama IACtHR (2009) Series C No 193, para 130.

71
Moot proposition, para 23.

72
UNHRC, ‘Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion
and Expression’ (16 May 2011) UN Doc A/HRC/17/27 (‘UNHRC May 2011 Report’) paras 22–23. See also
Karatas v Turkey App no 23168/94 (ECtHR, 8 July 1999) (‘Karatas’) para 50–52; Şener v Turkey App no 26680/95
(ECtHR, 18 July 2000) paras 40, 42.

73
UDHR (adopted 10 December 1948) UNGA Res 217 A (III) art 19; ICCPR (adopted 16 December 1966, entered
into force 23 March (1976) 999 UNTS 171 art 19; Convention for the Protection of Human Rights and Fundamental
Freedoms (European Convention on Human Rights, as amended) (ECHR) art 10.

9|Page
society.74 Ballaya was prosecuted for inciting a public demonstration. Applicant submits that

prosecution of Ballaya is inconsistent with the Article 19 of the UDHR and the ICCPR [I],

Restriction imposed by prosecution is not permissible under Article 29(2) of the UDHR and

Article 19(3) of the ICCPR [II].

I. Prosecution of Ballaya under the ESA is inconsistent with Article 19 of the UDHR and

the ICCPR

(a) Ballaya’s statement is political statement on public interest and election

In a free democratic society those who are responsible for public administration must always be

open to criticism and any attempt to stifle or fetter such criticism amounts to political censorship

of the most insidious and objectionable kind.75 Laws imposing restrictions or limitations must

not be arbitrary or unreasonable and must not be used as means of political censorship or of

silencing criticism of the government.76 In an ongoing debate regarding issues critical to national

or public interest, a government must allow individuals to freely exchange and express their

ideas and opinions.77 Political speech enjoys wider protection during election period as it is

particularly important in the period of an election that opinions and information of all kinds are

circulated freely.78 The limits of critical comment are wider if a public figure is involved.79 The

74
‘The Right to Freedom of Expression: Restrictions on Foundational Right’
<www.icnl.org/research/trends/trends6-1.pdf> accessed 20 October 2016.

75
Hector v A.G. of Antigua and Barbuda (1990) 2 All ER 103, 106.
76
‘Commentary to the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to
Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms’
<http://www.ohchr.org/Documents/Issues/Defenders/CommentarytoDeclarationondefendersJuly2011.pdf> accessed
on 8 October 2016.

77
Le Pen v France App no 18788/09 (ECtHR, 5 July 2010) para 1.

78
Dlugolecki v Poland App no 23806/03 (ECtHR, 24 February 2009).
79
Dlugolecki v Poland App no 23806/03 (ECtHR, 24 February 2009).

10 | P a g e
limit of permissible criticism is wider with regard to government in relation to a private people.80

Therefore it can be said that by the prosecution under the ESA, Ballaya’s right to criticize the

government has been violated.81

Ballaya’s column relates to social, political and economic conditions of Yona people in

Amostra.82 All the statements made by Ballaya in her column were in regards to current and

pressing events including the election occurring in Amostra.83 Free speech promotes and

encourages debate about ongoing social and political issues,84 therefore Amostra has no legal

basis to censor or punish Ballaya’s statements.

(b) Ballaya’s prosecution was illegal and unnecessary since her statements did not

constitute hate speech

For an individual to be liable for hate speech there must be an intention for the speech to incite

hatred, discrimination or violence.85 Six factors has been identified by UN Human Rights

Committee to consider to qualify statement as hate speech-86 intention of the speaker, the content

80
Schacht v U.S. (1970) 398 US 58.

81
Moot proposition, paras 18,23.

82
Moot proposition, para 18.

83
Moot proposition, para 18.
84
Terminiello v Chicago 337 US 14 (1949).

85
Robert Faurisson v France UN Doc CCPR/C/58/D/550/1993 (UNHRC, 8 November 1996) para 10; Amnesty
International, ‘Written Contribution to the Thematic Discussion on Racist Hate Speech and Freedom of Opinion and
Expression organized by the United Nations Committee on Elimination of Racial Discrimination’ (28 August 2012)

86
UNHRC, ‘Rabat Plan of Action on the Prohibition of Advocacy of National, Racial or Religious Hatred that
Constitutes Incitement to Discrimination, Hostility or Violence’ (‘UNHRC Rabat Plan’) (2012)
<http://www.ohchr.org/Documents/Issues/Opinion/SeminarRabat/Rabat_draft_outcome.pdf> accessed 17 October
2016.

11 | P a g e
of the speech, context, the position of the speaker, extent of the speech and likelihood to occur

imminent violence.

In the present case, Ballaya’s statements were not intended to incite any hatred or violence since

Ballaya’s column provided a launch pad for important public discussion on Amostra’s political

and societal issues.87 The statement was political speech88 which was directed against the

exploitation of government during a relatively calm situation and election period89 when free

circulation of speech and information was essential.90

Ballaya did not make any degrading statement about Zasa religion rather criticized the people of

Zasa sect for corruption and human rights violations against Yona people91 and supported the

demonstration called by the anti-government protesters. Thus, no imminent violence was likely

to occur by Ballaya’s column.

II. Restriction imposed by prosecution is not permissible under Article 29(2) of the UDHR

and Article 19(3) of the ICCPR:

Any limitation on the right to Freedom of Expression must meet a strict “three-part” test: (i) It

must be provided by law, which is clear and accessible to everyone; (ii) It must pursue a

legitimate aim set out in Article 19(3) of the ICCPR; and (iii) It must be necessary and

87
Moot proposition, para 18.

88
Moot proposition, para 18.

89
Moot Proposition, para 2.
90
Dlugolecki v Poland App no 23806/03 (ECtHR, 24 February 2009).

91
Dlugolecki v Poland App no 23806/03 (ECtHR, 24 February 2009).

12 | P a g e
proportionate to achieve its purported aim.92 The applicant submits that the restriction imposed

through ESA do not pass this test in terms of right to Freedom of Expression:

(a) The Restriction is not prescribed by law:

A restriction is said to be prescribed by law if it is accessible and foreseeable.93 A law is

accessible if it gives the citizens sufficient indication of the legal rules applicable to a given

case94 and it is foreseeable if it is precise enough to enable the citizens to regulate their conduct95

and predict the consequences of non-compliance.96

In the present case, the provisions of the ESA are not precise enough because the terms

“seditious”97 or “extremist”98 are not clearly defined. Vaguely worded edicts, whose scope is

unclear, are not legitimate.99 The aforesaid Act also prohibits demonstrations which seek to

incite hatred, violence, or disrupt democratic process.100 This prohibition under the ESA is also

illegal since prohibitions under vague laws inhibit discussions on matters of public concern and

creates a situation of uncertainty about what is permitted, resulting in people steering far clear of
92
Refah Partisi (The Welfare Party) and Others v Turkey, App nos 41340/98, 41342/98, 41343/98, and 41344/98
(ECtHR, 13 February 2003), para. 50-85; Mukong v Cameroon, 21 July 1994, Communication No 458/1991 para
9.7 (UN Human Rights Committee).

93
The Sunday Times v UK App no 6538/74 (ECtHR, 26 April 1979); Silver and Others v United Kingdom App no
71336/75 (ECtHR, 25 March 1983); Malone v United Kingdom App no 8691/79 (ECtHR, August 1984).

94
The Sunday Times v United Kingdom App no 6538/74 (ECtHR, 26 April 1979).
95
Rekvenyi v Hungary App no 25390/94 (ECtHR, 20 May 1999).

96
Kruslin v France App no 11801/85 (ECtHR, 24 April 1990); Huvig v France App no 11105/84 (ECtHR, 24 April
1990).

97
Moot proposition, para 4 (a).

98
Moot proposition, para 4 (a).

99
‘Article 19 Freedom of Expression Limitations’ <http://www.article19.org/pages/en/limitations.html> accessed 6
October 2016

100
Moot proposition, para 4 (a).

13 | P a g e
any controversial topic for fear that it may be illegal, even if it is not.101 Here, Ballaya was

improperly prosecuted for her column since the restrictions imposed on her freedom of

expression was not prescribed by law.

(b) The restriction does not serve any legitimate purpose:

The ICCPR only permits limitations on freedom of expression when security of the state, public

order, or the rights or reputation of others is at risk.102 It is not reasonable to perceive Ballaya’s

column as a true threat to public order since she did not make any statement which may incite

violence, rather only calling for a “peaceful” day of resistance and some valid political

criticism.103

Restrictions may be invoked only if its genuine purpose and demonstrable effect is to protect a

country’s safety.104 Any restriction which has been imposed to shield a government from

criticism is not a valid restriction.105 The prosecution of Ballaya under the ESA for criticism of

government did not serve any legitimate aim under ICCPR.106

101
‘Article 19 Freedom of Expression’ <http://www.article19.org/pages/en/limitations.html> accessed 6 October
2016

102
Alexandre Dergachev v Belarus Comunication No 921/2000 UN Doc CCPR/C/74/D/921/2000 (2002), para 8;
Mukong v Camerooon Communication No 458/1991 UN Doc CCPR/C/51/D/458/1991 (1994) para 9.7. 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 (3).0

103
Moot proposition, para 18.

104
Johannesburg Principles, UN Doc E/CN 4/1996/39 (1996) prin 2(a).

105
‘Article 19 Freedom of Expression Limitations’ <http://www.article19.org/pages/en/limitations.html> accessed
6 October 2016
106
International Covenant on Civil and Political Rights ( adopted 16 December 1966, entered into force 23 March
1976) 999 UNTS 171 (ICCPR) art 19.

14 | P a g e
 (c) The restriction was not necessary in a democratic society and proportionate:

For the legitimacy of necessity, the restriction must not go beyond what is strictly required to

achieve the legitimate107 and must correspond to a ‘pressing social need’ and be proportionate to

meet the need.108 Any interference is necessary if the government is acting in response to a

pressing social need.109 In the context of restriction on freedom of expression, states have limited

margin of appreciation.110 The mere fact that speech is controversial does not justify such a

compelling state interest.111

In the present case, there was no necessity to impose restrictions on elections-related speech. The

announcement of general election was followed by a period of relative calm in Amostra112 and

therefore such a restriction before the election was neither necessary nor indispensable. It could

107
Chintaman Rao v State of Madhya Pradesh 1950 SCR 759, 763 (India); AG v Times Newspaper (1974) AC
273, 294 (UK); East and West Steamship Company v Pakistan PLD 1958 SC 41 (Pakistan); Constitutional Rights
Project and Others v Nigeria (2000) AHRLR 227 (ACHPR 1999) para 68; Ollson v Sweden (1989) 11 EHRR 259,
para 67; Funke v France 16 EHRR 297, para 55; Amnesty International v Zambia Communication No 212/98
(ACtHR, 5 May 1999), para 54; Arslan v Turkey App no 23462/92 (ECtHR, 8 July 1999) para 66; DeMorais v
Angola Communication No 1128/2002, UN Doc CCPR/C/83/D/1128/2002 (2005) (HRC) para 6.8; R v Oakes
[1986] 1 SCR 103, 138-139 (Canada).

108
Stramer K, European Human Rights Law (London Legal Action Group, London 1999) 169.

Handyside (n 12) para 48; General Comment 34 (n 3) paras 22, 33-34; UNHRC April 2013 Report (n 4) para 29;
109

Delfi June 2015 (n 8) para 131.

Wingrove v the United Kingdom (1997) 24 EHRR 1, para 53; Nilsen and Johnsen v Norway (2000) 30 EHRR
110

878.

111
Dudgeon v United Kingdom (1981) 4 EHRR 149, para 53; Rafael Busto Gisbert, ‘The Right to Freedom of
Expression in a Democratic Society’, in Roca and Santalayo (eds.), Europe of Rights: A Compendium on the
European Convention of Human Rights 377 (Martinus Nijhoff 2012); Serif v Greece (1999) 31 EHRR 561, para 53;
Lee v Republic of Korea Communication No 1119/2002, UN Doc CCPR/C/84/D/1119/2002 (2005) (HRC), para 7.2.

112
Moot proposition, para 2.

15 | P a g e
be legitimate to limit freedom of expression for national security reasons during a conflict but

not during peacetime.113

III. Prosecution of Ballaya attracts the doctrine of ‘double jeopardy’

Prohibition of double jeopardy is a well-established principle under the international law114 and

various legal systems.115 The US Supreme Court has applied ‘Blockburger’116 test to determine

whether any prosecution attracts double jeopardy. This test implied that the prosecution under

the law must be done for same kinds of offenses. The court laid down that prosecution of two

different offenses attracts double jeopardy if the offenses have same elements.117It also identified

the circumstances when different offenses should be treated as same for double jeopardy

purpose.118

Ballaya was prosecuted under s. A and s. B of SIA and s. 3 of ESA. Both these offenses contain

same elements which are intention, incitement to hatred and violence. Moreover, the definition

of the offenses must not be similar under the law, it also needs to be carried out under similar

113
‘Article 19 Freedom of Expression Limitations’ <http://www.article19.org/pages/en/limitations.html> accessed
6 October 2016

114
Charter of Fundamental Rights of European Union 2000/C 364/1, art 50; Complementary Protocol 7 of the
ECHR, art 4; ICCPR, art 14, para 7.

115
Fourth amendment, Constitution of USA; Canadian Charter of Rights and Freedom, s. 11(h); Constitution of
India, art 20(2).

116
Blockburger v US 284 US 299 (1932)
117
Franz Fischer v Austria 25

118
Grady v Corbin 495 US 508 (1990)

16 | P a g e
circumstance.119Ballaya was prosecuted twice for the same article that she wrote. Under the same

conduct test120, she should have been tried for once.

ISSUE-C: AMOSTRA DOES NOT HAVE JURISDICTION TO OBTAIN AND

ENFORCE THE CIVIL ORDER AGAINST SEESEY IN AMOSTRA AND SARRANTO.

Applicant submits that exercising jurisdiction over Amostra is incompatible with the territorial

sovereignty principle of International law [I], presence of a subsidiary within a state cannot

suffice to avail jurisdiction over a foreign parent company [II] and SeeSey does not constitute

‘minimum contact’ with forum state and harm caused by SeeSey was not intentional [III]

I. Exercising jurisdiction over Amostra is incompatible with the territorial sovereignty

principle of International law.

Within the sphere of International law, a state is subject to limitations on its authority to exercise

jurisdiction in cases that involve foreign elements or activities.121It is one of the core

implications of sovereignty that a state shall have the right to exercise, within a definite territory

and to the exclusion of other states, the jurisdiction to adjudicate and enforce laws of its own

over persons therein.122As each nation holds exclusive jurisdiction within its territory;123and any

119
Akhil Reed Amar, ‘Double Jeopardy Law Made Simple’ (1997) 1096 YLJ 12.

120
Grady v Corbin 495 US 508 (1990)

121
Restatement (Third) Of The Foreign Relations Law Of The United States § 401(A) (1987).
122
David Hunter ET AL, International Environmental Law and Policy (2d ed. 2002) 379. See also Joan Fitzpatrick,
‘Sovereignty, Territoriality, and the Rule of Law’(2002) 25 Hastings INT'L & CoMp Law Review 303.

123
Thomas Hobbes, Leviathan (first published 1651, Richard Tuck ed, Cambridge University Press 1991) 9-10; Jean
Bodin, Six Books of The Commonwealth (first published 1576, MJ Tooley trans 1955) 7-8.

17 | P a g e
extraterritorial exercise of jurisdiction potentially infringes on the sovereignty of another state,124

therefore, every state must abstain from undue encroachment on the jurisdiction of other

states.125

Since the social media platform SeeSey is a company having its headquarters, which hosts all

worldwide data, placed in a far located sovereign country Sarranto,126 it shall be regarded as a

foreign entity which is beyond the scope of local jurisdiction. Therefore, Amostran court neither

have jurisdiction to obtain a civil order against SeeSey nor to enforce it in both Amostra and

Sarranto as it will be an undue encroachment on a foreign jurisdiction.127

II. Presence of a subsidiary within a state cannot suffice to avail jurisdiction over a foreign

parent company.

According to the established principles of company law both parent and subsidiary companies

have separate legal entities128, and their individual identities are shielded by corporate

veil129unless the subsidiaries were formed with some fraudulent intent such as evading taxes or

escaping any other liability.130 In the present case, since the owned subsidiary of SeeSey in

Amostra, the SeeSALES, had paid all appropriate taxes in due time131 and no other fraudulent

124
Karen Halverson, ‘Is a Foreign State a "Person"? Does it Matter?: Personal Jurisdiction, Due Process, and the
Foreign Sovereign Immunities Act’ (2001) 34 NYU J INT'L L & POL 115, 135-36.

125
Barcelona Traction, Belgium v Spain (Light and Power Company Case), 5 February 1970 ICJ 3, 17-53.

126
Moot proposition, paras 6, 8.

127
Mark W Janis, An Introduction To International Law (2d ed, 1993) 153-62.

128
Ebbew value Urban Area Distt Council v South Wales Traffic Area Licensing Authority [1951] 2 K B 356.

129
Bell v Level Brothers Ltd [1932] 2 AC 161.
130
Freewheel (India) Ltd v Veda Mitra, AIR (1969) Delhi 258.

131
Moot proposition, para 9.

18 | P a g e
activities have been reported about them, thus, both SeeSey and SeeSALES shall be treated as

separate legal body. Besides that SeeSALES is operated independently in Amostra with a

specific business objective.132 Accordingly, presence of SeeSALES alone cannot be sufficient to

avail jurisdiction over its parent company SeeSey, as the court held in Cannon case133 that use of

a subsidiary does not necessarily a subject of parent corporation to the jurisdiction of the state.

State has no general personal jurisdiction over foreign companies whose only “connections” to

the state are the activities of its legally separate but wholly owned subsidiaries within its

territory.134 On the same ground it is also not appropriate to enforce the order against SeeSALES

satisfying the liabilities of its parent company. 135

III. Seesey does not constitute ‘minimum contact’ with forum state and harm caused by

Seesey was not intentional

Amostra does not have any jurisdiction to obtain and enforce the civil order against SeeSey in

Amostra and Sarranto as SeeSey website is not interactive enough to constitute ‘minimum

contact’ with the forum state and SeeSey did not have minimum contacts with Amostra and the

harm caused by SeeSey is not intentional.

132
Moot proposition, para 9.

133
Cannon Mfg Co v Cudahy Packing Co (1925) 69 L Ed, Adv Ops 308, 45 Sup Ct Rep 250.
134
Daimler AG v Bauman (2014) 134 S Ct 746.

135
Bell v Lever Brothers Ltd (1932) 2 A C 165.

19 | P a g e
 (a) SeeSey website is not interactive enough to constitute ‘minimum contact’ with the

forum state.

The “sliding scale test”, also known as “Zippo test”,136 is the most influential internet jurisdiction

test in modern era by an overwhelming majority.137 Originating from ‘the minimum contact rule’

adopted in International Shoe138 case, the Zippo test classifies all internet websites into three

broad categories from active to passive, and provides for exercise of jurisdiction examining the

level of interactivity of the website and commercial nature of information exchanged.139 In the

present case, since the social media website of SeeSey is of passive nature and doesn’t actively

provide any content by its own other than the interactions made by its users,140accordingly,

Amostra can’t have jurisdiction over SeeSey by mere fact that its Sarranto based website is

accessible from its territory. The court also held in Mink v AAA Dev LLc case that a passive

website should not be subject to jurisdiction based solely on their site which does little more than

make contents visible to who are interested.141

More importantly, subsequent decisions of courts also annexed significant changes to Zippo rule

by defining the scope interactivity, and took a holistic approach holding that interactivity of a

136
Eric C Hawkins, General Jurisdiction and Internet Contacts: What Role, if any, Should the Zippo Sliding Scale
Test Play in the Analysis?, Fordham Law Review, Volume 74, Pg 1-2 (2006).

137
Dennis T Yokoyama, ‘You Can't Always Use the Zippo Code: The Fallacy of a Uniform Theory of Internet
Personal Jurisdiction’ (2005) 54 DePaul L Rev 1147, 1148.

138
International Shoe Co v Washington 326 US 310, 316 (1945).

139
Zippo Manufacturing Co v Zippo Dot Corn, Inc, 952 F Supp 1124 (W D Pa 1997).
140
Moot proposition, para 6.

141
Mink v AAA Dev LLc 190 F 3d 333 (5th cir 199).

20 | P a g e
website alone doesn’t constitute ‘purposeful availment’ of jurisdiction.142 Besides, the consensus

among courts have bluntly emphasized on the issue that general jurisdiction cannot be solely

based on the existence of a defendant’s internet website. Otherwise, the mere existence of an

internet website would render any individual or entity that created such a website subject to

personal jurisdiction in every state. 143

(b) SeeSey did not have minimum contacts with Amostra and the harm caused by SeeSey

is not intentional.

In order to assert jurisdiction over an out of state defendant the court must establish a minimum

level of contact of defendant with the forum state.144 In the internet context, the “effect test”

adopted from Calder case145 can be used to determine whether defendant’s out of state actions

are directed parties or entities within the forum state, and to satisfy due process requirement of

“minimum contacts”.146 The court held that it could assert jurisdiction only where defendant’s

act was (a) an intentional action, (b) expressly aimed at the forum state, and with (c) knowledge

that the brunt of the injury would be felt in the forum state.147

3D Systems, Inc v Aarotech Laboratories, Inc, 160 F 3d 1373 (Fed Cir 1998); American Information Corp v
142

American Infometrics, Inc, 139 F Supp 2d 3696 (D Md 2001).

143
Dagesse v Plant Hotel N V 113 F Supp 2d 211, 221 (D N H 2000).

144
International Shoe Co v Washington 326 US 310 (1945).

145
Calder v Jones 465 US 783 (1984).

146
‘Standards for Internet Jurisdiction’ <corporate.findlaw.com> › Corporate Counsel › Litigation and Disputes
accessed 16 October 2016.

147
Calder v Jones 465 US 789-90 (1984); Dudnikov v Chalk & Vermilion 514 F 3d 1063 514 (10th Cir 2008).

21 | P a g e
In the present context, ‘SeeSey’ is a social media website which is accessible worldwide

including Amostra,148 and the website is also of a passive nature since it does not provide any

contents of its own other than the contents posted by its users.149Therefore, it is submitted that

contents related to Ballaya’s article are neither an intentional conduct by SeeSey, nor expressly

aimed at Amostra. It was further held, mere assertion that defendant knew or should have known

that his intentional actions would cause harm in the forum state is not enough to establish

jurisdiction under the effect test.150 The Tenth Circuit of U.S. court also noted that mere

allegation that a defendant’s tortious acts caused injury to a forum resident will not suffice to

establish ‘minimum contacts’ required for personal jurisdiction.151 Instead, the court will inquire

into the extent to which the defendant has purposefully availed itself of the benefits of the

forum’s laws.152

148
Moot proposition, para 6.

149
Moot proposition, para 6.

Griffis v Luban, 646 NW 2d 527, 534 (Minn 2002); Bancroft & Masters, Inc v Augusta Nat'l, Inc, 223 F 3d 1082,
150

1087 (9th Cir 2000).

152
World-Wide Volkswagen Corp v Woodson 444 US 286, 297 (1980).

22 | P a g e
ISSUE-D:- AMOSTRA’S CIVIL ORDER AGAINST SEESEY VIOLATES

INTERNATIONAL PRINCIPLES, INCLUDING ARTICLE 19 OF UDHR AND THE

ICCPR

The freedom of expression is considered the foundational human right of greatest importance.153

This right is protected by a multitude of international principles including the UDHR and

ICCPR154, and only can be abridged in limited and particular circumstances.155 Applicant

submits civil order places an illegal restriction upon article 19 of the both the UDHR and the

ICCPR[I] and restriction imposed by civil order is not permissible under article 29(2) of the

UDHR [II].

I. Civil order places an illegal restriction upon article 19 of both the UDHR and

ICCPR:

Freedom of expression includes all forms of expressions including matters of internet.156SeeSey

has right to FOE and the civil order violates the FOE of SeeSey and the FOE of SeeSey as an

intermediary.

153
Center for Law and Democracy, ‘Restricting Freedom of Expression: Standards and Principles, Background
Paper for Meetings Hosted by the UN Special Rapporteur on Freedom of Opinion and Expression’
<http://www.law-democracy.org/wp-content/uploads/2010/07/10.03.Paper-on-Restrictions-on-FOE.pdf> accessed 2
October 2016.
154
ICCPR (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171art19; UDHR (adopted 10
December 1948) UNGA Res 217A (III) art 19.

155
Niraj v Cameroon [2007] AHRLR 21 [ACHPR 2007] para 6.4; Handyside v United Kingdom [1976] 1 EHRR
737 para 49. See also Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (
Arts 13 and 29 American Convention on Human Rights), Advisory Opinion OC-5, Inter-American Court of Human
Rights Series A No 5 (13 November 1985) 8788/09 (E).
156
UNCHR ‘Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion
and Expression’ (2011) UN Doc A/HRC/17/27; General Comment 34.

23 | P a g e
 (a) SeeSey’s right to FOE has been violated:

From functional character SeeSey is a participative networked platform which does not create or

edit157 its content published according to OECD classification.158 Furthermore, it plays the role

as a host159 intermediary, which is neutral160, mere technical161 and passive162.

Freedom of press extends to online forms of media.163Journalists and press enjoy wider

protection having a necessary breathing room164with less ‘duties and responsibilities’165 under

FOE jurisprudence.166Restricting the freedom of press not only violates the freedom of imparting

information of press but also the people’s right to receive information.167Playing the role of a

157
Moot proposition, para 14.

158
OECD, The Role of Intermediaries in Advancing Public Policy Objectives (1st edn, OECD Publishing 2009)
<http:/dx.doi.org/10.1787/9789264115644-en> accessed 29 September 2016.

159
Council Directive 2000/31/EC of 8 June on certain legal aspect of information society services in particular
electronic commence in the Internal Market OJ L 178/1, art 14.

160
Google France v Louis Vuitton Malletier and others C-236/08 to C-238/08 of 23 March 2010, para 114.

Google France v Louis Vuitton Malletier and others C-236/08 to C-238/08 of 23 March 2010, para 114; The E-
161

Commerce Directive Article 14: Liability exemption for hosting third party content, University of Oslo, 26 April,
2011 < https://www.duo.uio.no/bitstream/handle/10852/19450/117618.pdf> accessed 8 October 2016.

Google France v Louis Vuitton Malletier and others C-236/08 to C-238/08 of 23 March 2010, para 114; see also
162

Delfi v Estonia Delfi AS v Estonia App no 64569/09 (2015) paras 52, 128.

163
European Parliament resolution of 21 May 2013 on the EU Charter: standard settings for media freedom across
the EU (2011/2246(INI)) <http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P7-TA-2013-
0203&language=EN&ring=A7-2013-0117> accessed 2 October 2016.

164
New York Times v Sullivan 376 US 254 (1964) 272.

165
ICCPR (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 art 19(2); Convention for
the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights, as amended)
(ECHR) art 10(2).

166
Jean-François Flauss, The European Court of Human Rights and the Freedom of Expression, Indiana Law
Journal, Vol. 84:809, 2009, p 828.

167
Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human
Rights, as amended) (ECHR) art 10; Lingens v Austria App no 9815/82, (ECtHR 8 July 1986) [34]; I/A Court H.R.,

24 | P a g e
source of news in Amostra168 and being the ‘planet’s best news source’169, SeeSey enjoys the

protection of press.170

Press works as public watchdog171in a democratic society, it is marketplace of idea172, where ‘in

a free and open counter, truth will prevail’173.The column of Ballaya posted in SeeSey is open to

political argument and discussion174which is required for public interest175 since SeeSey allows

its users to comment in the post.176 Debate on public issue should be inhibited, robust and wide-

Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29
American Convention on Human Rights).
168
Moot Proposition, para 12.

169
Moot Proposition, para 14. See also Ruth A Harper, The Social Media Revolution: Exploring the Impact on
Journalism and News Organizations (2010) vol 2 no.3 <http://www.inquiriesjournal.com/articles/202/the-social-
media-revolution-exploring-the-impact-on-journalism-and-news-media-organizations> accessed 15 October 2016; ‘
The Social Media Revolution: Exploring the Impact on Journalism and News Media Organization HaewoonHa
Kwak, Changhyun lee, Hosung Park, Sue Moon, “What is Twitter, a Social Network or a News Media”, Department
of Computer Science, KAIST.

170
MTE v Hungary App No 22947/13 (ECtHR, 2 February 2016); Delfi AS v Estonia App no 40287/98 (ECtHR, 16
June 2015) ;See also Ruth A Harper, The Social Media Revolution: Exploring the Impact on Journalism and News
Organizations (2010) vol 2 no 3 <http://www.inquiriesjournal.com/articles/202/the-social-media-revolution-
exploring-the-impact-on-journalism-and-news-media-organizations> accessed 15 October 2016; ‘ The Social Media
Revolution: Exploring the Impact on Journalism and News Media Organization HaewoonHa Kwak, Changhyun lee,
Hosung Park, Sue Moon, “What is Twitter, a Social Network or a News Media”, Department of Computer Science,
KAIST.

171
Lingens v Austria Application no. 9815/82 (ECtHR, 8 July 1986) para 44; Jeffrey S. Nestler, The
Underprivileged Profession: The Case For Supreme Court Recognition Of The Journalist’s Privilege, University Of
Pennsylvania Law Review,Vol. 154: 201, 2005; Potter Stewart, ‘Or of the Press’, The Hasting Law Journal, Vol. 26,
1915.

172
Potter Stewart, ‘Or of the Press’, The Hasting Law Journal, Vol 26, 1915; Jeffrey S Nestler, The
Underprivileged Profession: The Case For Supreme Court Recognition Of The Journalist’s Privilege, University Of
Pennsylvania Law Review,Vol 154: 201, 2005, page 634.

173
John Milton, Areopagitica and of Education 1, 50 (Harlan Davidson Inc 1951).

174
Delfi AS v Estonia App no 40287/98 (ECtHR, 16 June 2015) para 135; Jerslid v Denmark Application
no15890/89 (ECtHR, 23 September 1994); Thoma v Luxemburg App no 38432/97 (ECtHR, 29 March 2001); Print
Zeitungsverlag GmbH v. Austria Application no 26547/07 Chamber Judgment [2013] ECHR 943 (10 October
2013).

175
Lingens v Austria App no 9815/82 (ECtHR, 8 July 1986) para 41, 43.

176
Moot proposition, para 6.

25 | P a g e
open.177 Thus Amostra enjoys narrower margin of appreciation in restricting freedom of

expression of SeeSey.

Restrictions must not be overbroad,178 it must be least intrusive when applied by any judicial

authority179and ‘content specific’.180 The court ordered to remove all offensive contents

replicating or relating to Ballaya’s column181, where the term ‘offensive’182 is too broad and is

not defined in SIA.

Furthermore, any expression which is offensive, shocking or disturbing is protected.183 Only in

religious context gratuitously offensive content is illegal.184 ‘Clear unlawfulness’185 on behalf of

the content is required. An offensive content cannot be removed if it is not unlawful. Thus

court’s order to remove ‘offensive’ content clearly violates FOE of SeeSey.

177
New York Times v Sullivan 376 US 254 (1964) 271.

178
General comment 34 (12 September 2011) Un Doc CCPR/C/GC/34 para 34.

General comment 27 para. 14. See also Communications No. 1128/2002, Marques v. Angola; No. 1157/2003,
179

Coleman v. Australia.

180
General comment 34 (12 September 2011) Un Doc CCPR/C/GC/34 para 43.
181
Moot proposition, para 24.

182
Handyside v United Kingdom (1976) ECHR 5 para 49.

183
Handyside v United Kingdom (1976) ECHR 5 para 49; Special Rapporteur, HRC 17/27, para 37. See also
Lingens v Austria App no 9815/82 (ECtHR, 8 July 1986); Oberschlick v. Austria App no 15974/90 (ECtHR, 26
April 1995).

Murphy v Ireland, App no 44179/98 (ECtHR, 10 July 2003) para 65; Wingrove v United Kingdom App no
184

17419/90 (ECtHR, 25 November 1996) para 40.

185
Delfi AS v Estonia App no 40287/98 (ECtHR, 16 June 2015) para 153.

26 | P a g e
 (b) SeeSey’s right to freedom of expression as an intermediary has been violated:

The liability of intermediary can arise from the comments by third party.186 It is held in the same

case that complying with a takedown order on behalf of the intermediaries, the comments must

be clearly ‘unlawful’.187 Criminalizing legitimate online expression is in contravention with the

international human rights law.188The declaration regarding the illegitimacy of the content must

come from a judicial authority.189 No clear decision came from the judicial authority on the

legality of the comments by the users. Furthermore, private parties like intermediaries cannot

determine the legality of content.190SeeSey cannot determine which contents are offensive or not.

The users of SeeSey commented that they would carry knives and available weapons191 for self-

defense. Right to self-defense is a well-established right under international principle.192 In the

Heller case 193

per second amendment of US constitution. In Kolbe case194 keeping the automatic weapons and

high capacity magazines by the citizens were permitted. So, the alleged comments are nothing

but mere expressions of exercising their legitimate right to self-defense and not illegal.
186
MTE v Hungary App No 22947/13 (ECtHR, 2 February 2016) para 63,64.

187
MTE v Hungary App No 22947/13 (ECtHR, 2 February 2016) para 63, 64.

188
UNHRC, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion
and Expression: Addendum, Communications to and from Governments, 16 May 2011, A/HRC/17/27.
189
UNHRC, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion
and Expression: Addendum, Communications to and from Governments, 16 May 2011, A/HRC/17/27.

190
UNHRC, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion
and Expression : Addendum, Communications to and from Governments, 16 May 2011, A/HRC/17/27., para 42.

191
Moot Proposition, para 20.

192
ECHR (adopted 4 November 1950, entered into force 3 September 1953) art 2.
193
District of Columbia v. Heller 554 US 570 (2008); McDonald v. Chicago 561 US 742 (2010).

194
Kolbe v Hogan, 813 F.3d 160 (2016)

27 | P a g e
 (c). Civil order has a chilling effect upon the freedom of expression:

A chilling effect may be caused by legal actions such as the passing of a law, the decision of a

court or the threat of a law suit.195Removing any content before judicial determination of its

legality has chilling effect.196Again an injunction upon political speech creates a chilling effect

upon the right to freedom of expression as the injunction had not been proportionate to the

legitimate aims pursued and necessary in a democratic society.197In the light of New York Times

Co v Sullivan198the civil order issued by the Amostra’s court to remove all the offensive contents

worldwide by imparting an expansive term ‘offensive’ without sufficient preciseness and definite

reasons would create a fear and uncertainty upon the users of SeeSey of exercising their right to

freedom of expression as it ranks the most popular source of news and political discussion and

users regularly share and comment on media content on the platform.199

195
UNHRC ‘General Comment 34’ in ‘Article 19: Freedoms of Opinion and Expression’ (12 September 2011) UN
Doc CCPR/C/GC/34, para 47; see also Vakfı and Others v Turkey Application no 28255/07 (ECtHR, 8 October
2013); Ricci v Italy App no 30210/06 ECHR 291 (2013).

196
Christian Ahlert, Chris Marsden and Chester Yung, ‘How ‘Liberty’ Disappeared from Cyberspace: The Mystery
Shopper Tests Internet Content Self-Regulation’ <http://pcmlp.socleg.ox.ac.uk/wp-
content/uploads/2014/12/liberty.pdf> accessed 15 October 2016.

197
Cumhuriet Vakfi v Turkey (2013) EHRR 925.
198
New York Times v Sullivan 376 US 254, 277-7 (1964).

199
Moot proposition, para 12.

28 | P a g e
II. Restriction imposed by civil order is not permissible under article 29(2) of the UDHR:

Restriction imposed under Article 29(2) of UDHR must pass the three tier test. Restriction on

freedom of expression is not justified if it is i) prescribed by law, ii) pursues a legitimate aim and

iii) is necessary in a democratic society.200

(a) Restriction imposed by civil order is not prescribed by law:

A restriction is prescribed by law, if the law restricting FOE is accessible and foreseeable.201It

has to be explicit, precise and clear202and must not be vague and overbroad.203It has to be

prescribed with sufficient precision and guidelines to enable the citizens to regulate their

conduct.204 The offences mentioned in SIA are not sufficiently specific and foreseeable.

200
The Sunday Times v United Kingdom (1979-80) 2 EHRR 245.

201
The Sunday Times v United Kingdom (1979-80) 2 EHRR 245; Silver and Others v United Kingdom (1983) 5
EHRR 347; Malone v United Kingdom (1984) 7 EHRR 14; Olsson v Sweden (1988) 11 EHRR 259; Rekvényi v
Hungary App no 25390/94 (ECtHR, 20 May 1999); Ekin v France (2001) ECHR 473; Gaweda v Poland App no
26229/95 (ECtHR, 14 March 2002); Gillan and Quinton v United Kingdom App no 4158/05 (ECtHR, 12 January
2010).

202
Herrera-Ulloa v Costa Rica, Preliminary Objections,cited inI/A Court H.R., Merits, Reparations and Costs.
Judgment of July 2, 2004. Series C No. 107. Para 120; Ricardo Canese v Paraguay, cited in I/A Court H.R.,.Merits,
Reparations and Costs. Judgment of August 31, 2004. Series C No. 111 Para 72(a); See also IACHR, Annual Report
of the Office of the Special Rapporteur for Freedom of Expression 2008. OEA/Ser.L/V/II.134.Doc.5. 25 February
2009. Chapter III, paras 63-68 <http://www.cidh.oas.org/annualrep/2008eng/Annual%20Report%202008-
%20RELE%20-%20version%20final.pdf> accessed 1 October 2016.

203
UNCHR ‘General Comment 3’ in ‘Article 19 (Freedom of Opinion and Expression)’ (2011) UN Doc
CCPR/C/GC/34; See also IACHR ‘Annual Report of the Office of the Special Rapporteur for Freedom of
Expression’ (2008) OEA/Ser.L/V/II.134.Doc.5. 25 February 2009 Ch III para66.R.A.V vs City of St. Paul 505 US
377<http://www.cidh.oas.org/annualrep/2008eng/Annual%20Report%202008-%20RELE%20-
%20version%20final.pdf> accessed 28 September 2016.

204
The Sunday Times v United Kingdom App no 13166/87 (ECtHR, 26 November 1991); See also Malone v United
Kingdom (1984) 7 EHRR 14; Markt intern Verlag GmbH and Klaus Beermann v Germany A 164 (1989) 12 EHRR
161; Muller v Switzerland (1991) 13 EHRR 212; de Groot v The Netherlands Communication No 578/1994, UN
Doc CCPR/C/54/D/578/1994 (1995) (HRC).

29 | P a g e
 (b) Restriction imposed by civil order is not pursued with legitimate aim:

A restriction prescribed by law must be pursued with a legitimate aim. But the aim of issuing the

civil order is not satisfied. 205There was no assertion206 or expressed aim from the government of

Amostra or any authorized body.

The ground ‘to protect public order’207 cannot be invoked. To qualify a speech as an expression

inciting violence, the expression must be intended to incite imminent violence, it is likely to

incite such violence and there must be immediate nexus between the expression and the

incidence of such violence.208 Ballaya echoed a call of peaceful protest, in response to this post

the viewer’s comment to carry knives for private self-defense209 and it is not proved whether the

alleged violence is influenced by the post.210 Thus both the post and the comments were not

intended to incite imminent violence.

205
ICCPR (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 art 19; The Johannesburg
Principles on National Security, Freedom of Expression and Access to Information, prin 1.1.

Janowiec and others v Russia App nos 55508/07 and 29520/09 (ECtHR, 2013) paras. 213 and 214. See also
206

Konstantin Markin v Russia App no 30078/06 (ECtHR, 2012).

207
ICCPR (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 art 19(2).

208
Brandenburg v Ohio 395 US 447 (1969); Johannesburg Principles on National Security, Freedom of Expression
and Access to Information, Principle 6; Special Rapporteur, HRC 17/27; Surek v turkey App no 26682/95 (ECtHR,
8 July 1999).

209
Moot proposition, paras 18, 20.

210
Moot proposition, para 21.

30 | P a g e
Claim of ‘national security’211 cannot be invoked since it may be invoked only when country’s

existence or its territorial integrity fall on risk because of the use or threat of force.212 The

column and the comment do not pose any threat or danger to the national security of Amostra.

(c) Restriction imposed by civil order is not necessary in a democratic society and

proportionate:

Applicant submits that the restriction through the civil order is not necessary in a democratic

society. The restriction is violation of FOE since there was no a pressing social need and the

restriction was not proportionate to the legitimate aim.213

(i) There was no pressing social need to issue “the take down order”

The term ‘necessary’ implies the existence of a pressing social need.214In a democratic system

the actions or omissions of the government must be subject to the close scrutiny of the public

opinion,215 where social media plays an important role in the society’s democratic

211
Johannesburg Principles on National Security, Freedom of Expression and Access to Information UN Doc E/CN
4/1996/39 (1996), prin 6.
212
Johannesburg Principles on National Security, Freedom of Expression and Access to Information, UN Doc E/CN
4/1996/39 (1996), prin 2(a).

Handyside v United Kingdom (1976) ECHR 5; The Sunday Times v United Kingdom 13166/87 (ECtHR, 26
213

November 1991); The Observer and The Guardian v United Kingdom App no 13585/88 (ECtHR, 26 November
1991); Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and
Political Rights, UN Doc E/CN 4/1985/4, cl 10(b) and (d).
214
The Sunday Times vs UK App no 13166/87 (ECtHR, 26 November 1991) para 59.

215
Arslan v Turkey App no 23462/94 (ECtHR, 8 July 1999) para 46.

31 | P a g e
development.216 Undue control of social medial may severely impair the ability of these

platforms to encourage participation in the public sphere.217 The restriction imposed upon the

post and comments is not necessary as the subject of the impugned content is subjected to public

opinion in a democratic country like Amostra.

Furthermore, the consideration of the justification of interference have to be intensely a practical

one218, the court will consider that whether the restriction is still necessary to achieve the

legitimate aim.219The commentator said to carry weapons on the day of peaceful resistance.220

Restriction is no longer necessary after the completion of the peaceful protest as there is no

imminent violence.221Moreover, the post of Ballaya remains accessible worldwide through the

website and print version of Ex-Amostran Times newspaper222, this renders the restriction very

impractical.

216
Saleem Kassim, ‘Twitter Revolution: How the Arab Spring was Helped by Social Media’ (3 July
2012)<http://mic.com/articles/10642/twitter-revolution-how-the-arab-spring-was-helped-by-
socialmedia#.G7RXVc5H3> accessed 27 September 2016; Jonathan Kaiman, ‘Hong Kong Protest Brings Crisis of
Confidence for Traditional Media’ The Guardian (14 June 2014)
<http://www.theguardian.com/world/2014/oct/29/hong-kong-protests-confidence media> accessed 17 January 2016.

217
UNHRC May 2011 Report (n 36) para 37; UNHRC, ‘Report of the Special Rapporteur on the Promotion and
Protection of the Right to Freedom of Opinion and Expression’ (7 September 2012) UN Doc A/67/357 para 51.

218
Observer and Guardian v UK App no 13585/88 (ECtHR, 26 April 1979).

219
Vereniging Weekblad Bluf! v. the Netherlands App no 16616/90 (ECtHR, 9 February 1995)

220
Moot proposition, para 20.
221
Brandenburg v Ohio 395 US 447 (1969).

222
Moot proposition, para 17.

32 | P a g e
 (ii) The restriction was not proportionate to the legitimate aim.

The test to judge proportionality is one of the balancing of interests as opposed to a strict

necessity test.223 Interference with freedom of speech and expression may be in the interests of

public order only if the likelihood of public disorder is a matter of proximate and not remote.224

It was not proved that the alleged column and comment are the main causes of the violence as

there was no evidence in the support of it.225

A restriction is proportionate when it is least onerous one226 and compatible with democratic

principle.227 SeeSey has the technical ability to remove the post from Amostra,228 so the order to

remove the post worldwide is not a proportionate measure. Moreover, suppressing political

speech is highly incompatible with democratic principle. In LICRA v Yahoo!229 the French Court

ordered Yahoo! to remove the content from the users from France which was unlawful under

French law.

223
McLeod v United Kingdom (1999) 27 EHRR 493; Barenblatt v United States 360 US 109 (1959), 126;Hatton and
others v United Kingdom App no 36022/97 (ECtHR, 8 July 2003); Rojas Garcia v Colombia Communication No
687/1996, UN Doc CCPR/C/71/D/687/1996 (2001) (HRC); Open Door and Dublin WellWoman v Ireland (1993) 15
EHRR 244; Smith v United Kingdom App no 33985/96, 33986/96 (ECtHR, 27 September 1999) para 74; Chapman
v United Kingdom App no 27238/95 (ECtHR, 18 January 2001).

224
Ramjilalmodi v State of Uttar Pradesh 1957 AIR SC 620.

225
Moot proposition, para 21.

Refah Partisi (The Welfare Party) and Others v Turkey, App nos. 41340/98, 41342/98, 41343/98, and 41344/98 (
226

ECtHR, 13 February 2003), para 50-85; Mukong v Cameroon, 21 July 1994, Communication No. 458/1991, para 9.7
(UN Human Rights Committee); Shelton v Tucker 364 US 479 (1960).

227
Retail,Wholesale and Department Store Union, Local 580 v Dolphin Delivery Ltd (1987) 33 DLR (4th) 174
(SCC).

228
Moot Proposition, para 7.

LICRA v Yahoo! Order No 05-1302 United States court of Appeals, Ninth Circuit-433 F.3d 1199 (January 12,
229

2006).

33 | P a g e
 PRAYER

In the light of the arguments advanced and authorities cited, the Applicants most humbly and

respectfully request this Honorable Court to adjudge and declare that:

I. Amostra’s prosecution of Ballaya under SIA of 2014 violates international principles

including article 19 of both UDHR and ICCPR.

II. Amostra’s prosecution of Ballaya under ESA violates international principles

including article 10 of both UDHR and ICCPR.

III. Amostra has no jurisdiction to obtain and enforce the civil order against SeeSey in

both Amostra and Sarranto.

IV. Amostra’s civil order against SeeSey violates international principles including article

19 of both UDHR and ICCPR.

On behalf of the Applicants, for this kind consideration, the Agents shall ever pray

All of which respectfully submitted

On this 21st Day of October, 2016

34 | P a g e