UNESCO Guide for Amicus Curiae Interventions on Freedom of Expression Cases

"Amicus curiae interventions can play a key role in the setting of lasting legal precedents for the protection and promotion of free, independent and pluralistic media ecosystems." 

This Guide is designed to provide practical information and guidance to civil society organisations (CSOs) and lawyers who consider intervening in freedom of expression cases before national or international courts as so-called ‘amicus curiae’ or ‘third party intervener’. In particular, it seeks to equip and empower CSOs with the basic tools to file effective amicus curiae interventions, and encourage them to intervene in cases where freedom of expression standards can be advanced or where the right to freedom of expression or the safety of journalists is at stake. 

‘Amicus curiae’ is a Latin term that literally means ‘friend of the court’. It indicates a person or organisation who participates in the case to provide an external perspective, independent from the parties. This guide uses the term to describe a CSO that intervenes in a case that is closely connected with that organisation’s mission (for example, a media freedom non-governmental organisation (NGO) intervening in the case of a journalist standing trial for defamation) to provide their perspective on the case. 

As explained in the Guide, amicus curiae interventions can play an important role in proceedings. Legal proceedings related to freedom of expression cases can present a unique opportunity for specialised organisations to advance international human rights standards related to the interpretation and enforcement of this fundamental human right. Amicus curiae interventions submitted by CSOs can help bring relevant information or legal trends that have not been highlighted by the parties to the attention of these courts. In addition, they can play a key role in the setting of lasting legal precedents for the protection and promotion of free, independent and pluralistic media ecosystems. They can also draw the attention of the wider public to a case where the right to freedom of expression or the safety of journalists is at stake, and serve as an important advocacy and educational tool for judges, lawyers, and society at large.

However, there are a number of considerations that any organisation wishing to take part in a relevant case via amicus curiae interventions should take into account before embarking on the amicus curiae process. Poorly led interventions can negatively affect the outcome of ongoing legal proceedings, cause unnecessary delays in the litigation, or politicise further an already politically sensitive case. By providing practical information on how to file amicus curiae briefs and setting out strategic considerations and do’s and don’ts, this Guide, therefore, seeks to empower organisations to file amicus curiae interventions and helps them write the most impactful brief possible. 

This Guide contains the following six parts:

• A discussion of the main strategic considerations that organisations who are thinking of intervening in a case should take into account. This includes questions such as how an intervention fits into a broader campaign, the type of cases to intervene in, and whether to intervene alone or as part of a coalition; 
• A section providing case studies, each chosen to illustrate interventions before different types of court and in different scenarios. Cases include: a criminal defamation case at the African Court on Human and Peoples’ Rights in Burkina Faso; a case involving the protection of bloggers and activists in Palestine; and a case involving the protection of journalistic materials at the European Court of Human Rights.  
• A section discussing practicalities, including how to monitor cases, engage lawyers and communicate with parties in the case; 
• A section discussing technical legal requirements, before international human rights courts as well as at the national level;
• Some recommended ‘do’s and don’ts’ in writing amicus curiae briefs, discussing what tone to strike and how to remain objective yet firmly set out the organisation’s perspective. 
• How to follow-up on a judgment, including monitoring implementation and engaging in post-judgment advocacy.

The Guide was published with the support of Media Defence, an international human rights organisation that provides legal help to journalists and independent media across the world who are under threat for their reporting.