Russia: European Court judgment is victory for freedom of expression

ARTICLE 19 welcomes a series of decisions by the European Court of Human Rights against Russia involving website blocking by Roskomnadzor, the executive body responsible for media and telecommunications censorship. Today, the Court found that the Russian law on website blocking had had an excessive and arbitrary impact on freedom of expression and had not provided proper safeguards against abuse.

Senior Director of  Law and Policy Barbora Bukovska said: 

“The Court’s judgment is a decisive victory for freedom of expression online in Russia, and will set an important precedent on the safeguards against website blocking powers.

“As EU discussions continue on the Digital Services Act and other issues such as filtering, the Court’s judgment provides an important reminder of the minimum safeguards that the law should provide when using blocking technology.”

In this series of judgments, Vladimir Kharitonov v. Russia, OOO Flavus and Others v. Russia, Bulgakov v. Russia, and Engels v. Russia, the Court noted that “the wholesale blocking of access to an entire website is an extreme measure which has been compared to banning a newspaper or television station”. It considered that a legal provision giving an executive agency such a broad discretion carries a risk of content being blocked arbitrarily and excessively. 

The law did not require the government agency (Roskomnadzor) to check whether the IP address used by the website targeted by a website blocking order was used by more than one website or to establish the need for blocking by IP address. It found that that manner of proceeding could, and did in the Kharitonov v. Russia, have the practical effect of extending the scope of the blocking order far beyond the illegal content which had been originally targeted. Both the original determination and Roskomnadzor’s implementing orders had been made without any advance notification to the parties whose rights and interests were likely to be affected. The blocking measures had not been sanctioned by a court or other independent adjudicatory body providing a forum in which the interested parties could have been heard. Nor did the Russian law call for any impact assessment of the blocking measure prior to its implementation. 

Similarly in OOO Flavus v Russia, the Court noted that the Russian website blocking law (Information Act) did not require the authorities to justify the necessity and proportionality of the interference with freedom of expression online or consider the question whether the same result could be achieved by less intrusive means. Nor did it require them to ascertain that the blocking measure strictly targeted the illegal content and had no arbitrary or excessive effects, including those resulting from the blocking of access to the entire website. 

Equally, the Court concluded that the Russian law did not provide those whose content was blocked, either as direct targets of the order or as collateral damage, with an effective remedy since the Russian courts had not examined the substance of the complaints and deferred to the overbroad discretionary power of the regulatory authority.

The Court concluded that there had been a violation of the rights to freedom of expression (Article 10 of the European Convention on Human Rights) and to an effective remedy (Article 13).

Website blocking and freedom of expression

ARTICLE 19 finds these decisions are a decisive victory for freedom of expression. The Court largely followed the submissions of ARTICLE 19, EFF and other interveners in these cases. In particular ARTICLE 19 and its co-interveners had argued that website blocking measures should only be considered compatible with human rights if they comply with the following requirements.

(1)  First, blocking measures must be provided for by law. A legal provision must establish clear and predictable rules concerning what content can be blocked, and to what extent. When it comes to assessing what content can be blocked, domestic legislation should follow the standards set by international human rights law.

(2)  Secondly, blocking measures must be issued by a court or an independent adjudicatory body. Non-independent government agencies are likely to enforce overly restrictive measures, as their primary goal is to protect interests that conflict with freedom of expression.

(3)  Thirdly, Internet users and Internet service providers (ISPs) must be allowed to challenge blocking measures. To that end, they must be given sufficient information on how to mount that challenge whenever they attempt to access a blocked site.

(4)  Lastly, blocking measures should be strictly targeted in order to avoid blocking lawful content. IP-address technologies should only be implemented in order to target non-shared IP servers. 

The Court’s judgment sets an important precedent regarding the safeguards that should be found in legislation granting website blocking powers and the considerations that come into play before making such an order. 

ARTICLE 19 and EFF intervened in Kharitonov v Russia and with AccessNow and Reporters Without Borders in OOO Flavus and others v Russia.

For further information, contact Pam Cowburn [email protected]