Content Regulation / Censorship, Hate Speech, National Security
Government of Kazakhstan v. Respublika
Closed Expands Expression
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The European Court of Human Rights (ECtHR) ruled that the Russian domestic court decision which directed the dragnet blocking of the applicant’s website amounted to a violation of the applicant’s right to freedom of expression (Article 10), and right to an effective remedy (Article 13 read in conjunction with Article 10) of the European Convention of Human Rights (ECHR). The applicant’s website was blocked on account of hosting a piece of prohibited material (an e-book that had previously categorised as extremist content) on the website. The blocking order was delivered at the request of a regional prosecutor who had requested the court to direct the local internet service provider to block access by using a formulation that would, in effect, block access to the applicant’s website as a whole, and not just the specific webpage(s) that contained the prohibited material. Upon finding out about the order, the applicant appealed against it, however, the domestic courts upheld the original decision of wholesale blocking. The ECtHR held that the interference from the application of the procedural law had arbitrary and excessive effects as it did not afford the applicant the requisite degree of protection and opportunity to be heard. Additionally, the ECtHR found that the domestic law remedy was not effective; the appellate court did not consider the substance of the applicant’s grievances.
In November 2013, Mr. Yevgeniy Vladimirovich Bulgakov (hereinafter “the applicant”), discovered that the local internet service provider had blocked access to his website on account of a judgment dated April 3, 2012, delivered by the Kirovskiy District Court. In late 2011, a regional prosecutor had brought a public interest claim against the local internet service provider, claiming that he was able to access prohibited material – a pamphlet and an e-book that were previously categorised as extremist publications; one copy of the e-book was available on certain webpages of the applicant. Using the specific formulation put forth by the prosecutor, the Kirovskiy District Court directed the internet service provider to block access to the publications “by adding filter rules for the websites’ IP addresses to the area border router”, which, in effect, led to the blocking of their entire website of the applicant. The applicant was unaware of these events including the blocking order.
Upon discovering the same in 2013, the applicant immediately removed the prohibited material from the website and brought proceedings against the internet service provider to have his website restored. The Savelovskiy District Court in Moscow in March, 2014 granted the claim, on the ground that the prohibited material had been removed. However, this decision was overturned on appeal in the Moscow City Court, the court refusing to overturn the original judgment. The applicant’s subsequent attempts to appeal in 2014 and 2015 were also denied.
Concurrently, the applicant requested the Kirovskiy District Court to fix a new time-limit for lodging an appeal against the original decision of website blocking. The District Court acceded and observed that the proceedings could not be considered fair if it determined the rights and obligations of parties who were not a party to the proceedings. The applicant produced relevant evidence before the court to show that the prohibited material has been removed from their website, and that they were unaware of the original blocking proceedings and hence, could not defend their case; nonetheless, in January 2015, the Rostov Regional Court dismissed the appeal. The Rostov Regional Court refused to set aside the original blocking decision since the prosecutor had lodged a claim against the local internet service provider and not the applicant. The Rostov Regional Court did not examine the applicant’s evidence and held that it was not evidenced that the prohibited material had been removed. The applicant’s subsequent attempts to appeal against the original blocking decision were also denied in 2015.
The primary issues before the ECtHR were that of (i) whether the website blocking constituted a violation of freedom of expression under Article 10 of the ECHR, and (ii) whether the redressal mechanism provided by the domestic courts enabled an effective remedy under Article 13 read in conjunction with Article 10 of the ECHR. The Court unanimously held that there has been a violation of Article 10, and Article 13 read with Article 10, of the ECHR.
The ECtHR (hereinafter also as “the Court”) unanimously held that there has been a violation of Article 10, and Article 13 read with Article 10, of the ECHR.
The Government argued that access to the applicant’s website was blocked by the internet service provider pursuant to the Kirovskiy District Court’s judgment; the telecoms regulator did not intervene. After the extremist content was removed, there were no further measures deployed to restrict access to the applicant’s website.
The applicant argued that the formula employed in the instant case for website blocking harked back to a 2011 Supreme Court judgment, which has frequently been used in multiple similar cases to block access to the IP addresses of entire websites despite the fact that prohibited content was localized to only certain, select pages of such websites. According to the applicant, this formula disregarded the distinction between a particular page of a website and website as a whole, overlooking the definitions provided for under section 2 of the Information Act. The courts failed to consider whether such blocking affected the accessibility of the website’s legitimate content and were only focused on prohibiting access to the prohibited content.
The applicant also submitted that, to their knowledge, there has only been one case where the courts correctly regarded the distinction between a website and a website page, and that blocking a website’s IP address would collaterally affect the entire website. This specific case was later upheld by the same Rostov Regional Court, which had, in the instant case, a couple of months later, reached an opposite conclusion. The applicant submitted that the judicial practice following the 2011 Supreme Court judgment failed to meet the “quality of law” requirement.
The third-party interveners, in their submissions, reiterated that “individuals should be allowed to enjoy the freedom of expression in online space to the same extent that they enjoyed it offline” [para. 25]. Anti-extremist laws have frequently been employed by States in such a manner that they confer excessive discretion to restrict online expression, and such laws tend to not define precise limitations for restriction of expression and justifications for those limitations. Restriction on expression, rather than its protection, is then prioritized. They also reiterated that wholesale blocking rarely satisfied the criteria for permissible restriction on freedom of expression, especially considering that restrictions should be content-specific and must not target websites solely because they are critical of the government or political systems. It was also submitted that blocking legitimate content is unacceptable in a democratic society. The authorities have a duty to carry out an individualized assessment of whether the same could be achieved with a less intrusive measure; and the targeted website must be informed, given reasonable to remove the offending content, and allowed to make a submission before any decision is given.
Further, it was also highlighted by the interveners that website blocking is an extreme and disproportionate measure that is unable to distinguish between lawful and unlawful content and hence, should never be required by law. Where website blocking is permissible, there must be certain minimum standards laid down by law, namely “(i) blocking should be ordered by a court or an independent adjudicatory body; (ii) interested parties should be given the opportunity to intervene in proceedings in which a blocking order has been sought; (iii) all victims of blocking orders should have the right to challenge, after the fact, the blocking order; and (iv) anyone attempting to access the blocked website should be able to see the legal basis and reasons for the blocking order and information about avenues of appeal” [para. 26].
ECtHR’s observations with respect to the alleged violation of Article 10
The Court first reiterated that Article 10 of the ECHR guarantees “everyone” the freedom to receive and impart information and ideas, not only with respect to content but also to the means of its dissemination. Measures that block “access to websites are bound to have an influence on the accessibility of the Internet” and blocking access to the website interfered with not only the right to impart information but also the right of the public to receive it [paras. 28-29].
Noting the three-part test under paragraph 2 of Article 10, the Court further reiterated that an interference would constitute a breach of Article 10 unless it is “prescribed by law”, pursues one or more of the legitimate aims mentioned in Article 10, and is “necessary in a democratic society”. To be “prescribed by law”, the impugned interference must have a statutory basis in domestic law and should be accessible, foreseeable, and clear in its scope.
Insofar as the District Court’s decision to curb the dissemination of the prohibited material is concerned, the Court noted that it was “prescribed by law” since the material had previously been categorised as extremist and hence was prohibited material under section 10(6) of the Information Act. Further, the mass dissemination of such material is unlawful under Article 20.29 of the Code of Administrative Offences. However, the Court further remarked that the original decision of the District Court that blocked access to the website was not limited to the identification of the offending content, but also determined the blocking method to be adopted. The District Court had borrowed the website blocking formulation as stated by the prosecutor, which had, in effect, led to the blanket blockage of the entire website and not the specific webpages which had contained the prohibiting material. The Court highlighted the applicant’s contention that there might have been a lack of technical expertise on the part of the judges which prevented them from understanding the distinction between a website and a webpage. Further, the Court also noted that the particular method of blocking did not have a statutory or regulatory basis. The Court reiterated that “blocking access to a website’s IP address has the practical effect of extending the scope of the blocking order far beyond the illegal content which had originally been targeted” and could be compared “to banning of a newspaper or television station” [para. 34] and may lead to blocking of legitimate content. The Court highlighted that such wholesale blocking methods were a concerning trend in Russia and that according to a database of judicial decisions over 12,000 judgments had been issued by 2020 that employed the same filtering method as in the present case [para. 15].
Furthermore, the Court noted that the applicant was not informed of the prosecutor’s application, nor were they afforded any opportunity to be heard before the application was filed during the original website proceedings. The relevant Russian law did not require the participation of the applicant in the blocking proceedings. The Court observed that the participation of the internet service provider was insufficient to bestow an adversarial character to the proceedings due to the sheer number of websites the provider provided access to; it cannot know the contents of websites nor defend them and has no vested interest in the outcome of the proceedings. The Court determined that the blocking proceedings were not adversarial in nature.
The Court noted that when the applicant instituted a challenge to the blocking measure, the domestic court failed to “apply the Plenary Supreme Court’s Ruling (no.21 of 27 June 2013) which required them to have regard to the criteria established by the Court” [para. 37]. The domestic courts also failed to consider whether “the same result could be achieved with less intrusive means or carry out an impact assessment of the blocking measure to ensure that it strictly targets the illegal content and has no arbitrary or excessive effects, including those resulting from the method chosen to implement it” [para. 37]. Additionally, the court observed that there was a lack of transparency in the domestic legislation as the Information Act did not require any notice of takedowns, and the refusal to lift the blocking order even after the removal of prohibited content only exacerbated the unlawfulness of the circumstance.
Accordingly, the Court determined that the interference was not “prescribed by law”; there was no necessity to examine other requirements of paragraph 2, Article 10.
ECtHR’s observations with respect to the alleged violation of Article 13 read with Article 10
The Court noted that though the facts remain the same as with the complaint under Article 10, there is a difference in the nature of rights protected under Articles 13 and 10 of the ECHR. Article 13 seeks to afford a procedural requirement (“right to an effective remedy”), however, the procedural requirements in Article 10 are ancillary to the overall protection of the substantive right to freedom of expression. The court accordingly proceeded to examine the same set of facts under both provisions.
The Court noted that since the applicant had claimed a violation of freedom of expression, Article 13 required that they must have an “effective” domestic remedy available as well, in terms of providing redressal of violation that already occurred, and in terms of the preventing any alleged violation or its continuation. Despite the fact that the applicant was able to approach the court of law for appealing against the original blocking order and take part in those proceedings, the appellate court failed to consider the substance of their grievance. The appellate court did not address the legal distinction between website and webpages; did not “examine the necessity and proportionality of the blocking measure and the excessive effects of the chosen method of its implementation” [para. 48]; did not appreciate the applicant’s evidence.
The Court noted the issues raised by the third-party interveners; specifically, that both ex-ante and ex-post remedies should be made available to the affected parties. Ex-ante remedies would include measures such as prior notification to the owners of the targeted websites, and ex-post remedies would mean that when website blocking orders are implemented, there are enabling efficient mechanisms for restricting its scope or challenging it on account of new circumstances.
Accordingly, the Court determined that the domestic remedy was not “effective” within the meaning of Article 13.
As regards damages
Considering the above observations, the ECtHR held that the respondent State is to pay the applicant EUR 10,000 as compensation.
Joint concurring opinion
Judges Lemmens, Dedov, and Poláčková wrote a joint concurring opinion, noting specifically that the lack of a basis in domestic law for the method for blocking was in itself sufficient to conclude that the interference was not “prescribed by law”. For proper execution of the present judgment, they noted that: it is the task of the legislature to amend the law in a manner that grants websites owners the opportunity to be heard and defend their rights; it will be for the prosecutors and courts to pay due attention to the website blocking method being employed; and that judges must be properly trained if there is a lack of technical expertise on part of the judges in such cases.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Bulgakov v. Russia was one of four judgments against Russia (OOO Flavus and Others v. Russia, Bulgakov v. Russia, Engels v. Russia, Vladimir Kharitonov v. Russia) which the European Court of Human Rights handed down on June 23, 2020 relating to the blocking of access to websites. Atakan Güngördü discussed these four cases in a Strasbourg Observers blog post The Strasbourg Court Establishes Standards On Blocking Access To Websites , excerpts of which are reposted below with permission and thanks.
The Court held that Russian authorities had violated the applicants’ right to freedom of expression on the internet, as well as their right to an effective remedy in all four cases.
These four judgments come as an important victory for the protection of online free speech in Russia and set precedents for other Member States to adopt or amend internet laws in line with the Court’s standards.
In order to prevent excessive or arbitrary effects of blocking access to illegal content on the internet, the Court identified a number of legislative safeguards which were applied in all four cases. Any domestic law prescribing online access blocking measures should provide these safeguards in order to pass the ‘quality of law’ test under the European Convention on Human Rights (the “Convention”).
The first two safeguards identified by the Court, namely the safeguards against prior restraints and collateral effect, had already been addressed by the Court in its earlier judgments of Ahmet Yıldırım v. Turkey in 2012 and Cengiz and Others v. Turkey in 2015. Although, the Court has, for the first time, placed these two safeguards in a comprehensive framework, which will be explored below.
The Strasbourg Court concluded that the Russian law on website blocking did not provide these safeguards and produced arbitrary effects in all four cases.
In the early judgments of Ahmet Yıldırım v. Turkey and Cengiz and Others v. Turkey concerning blocking access to websites, the Strasbourg Court had focused on the lack of a legal basis and foreseeability of the measures without giving further guidance to the Member States as to how to establish domestic law and practice which complies with the Convention.
To Judge Lemmens’ regret, expressed in his concurring opinion in Cengiz and Others, the Strasbourg Court had ‘missed the opportunity’ to provide comprehensive standards in these early judgments. Within this context, the four cases against Russia provided the Court with a second chance to establish such standards on the topic and, this time, the opportunity was seized. Three points in particular that the Court made in these judgments carry significant weight.
First, the Court asserted that blocking access to entire websites is an extreme measure which is comparable to banning a newspaper or TV station (OOO Flavus and Others, para. 37). Through this, the Court has raised the required standards to block access to websites much higher than its earlier judgments. This entails that domestic authorities can block only the specific illegal content in a given website. If the scope of the blocking order extends to legal content on the website, it would constitute a violation of the Convention. Given that some Member States do not have the necessary technology to block specific pages in websites (see, Cengiz and Others, para. 23), the Court certainly does not leave much room for domestic authorities to maneuver.
Second, the Strasbourg Court recognized the content-neutral nature of internet filter-bypassing technologies. It rejected the Russian Government’s argument that such technologies are solely used for extremist purposes and compared them to the printing press. The Court concluded that just as a printing press can print anything from a school textbook to extremist material, internet filter-bypassing technologies can be used for both legitimate and illegitimate purposes. However, such tools are content-neutral and blocking information about these tools are no different than banning the use of printers because they may be used to print illegitimate material (Engels, para. 30). This is a momentous conclusion for the advancement of online free speech since such tools are often used by internet users in authoritarian regimes to access restricted information on the internet or anonymously express themselves on the internet without interferences by governments.
Finally, the Strasbourg Court has shed light on blocking access to shared IP addresses. It acknowledged that a website owner should not have to bear consequences of a blocking measure on another website that hosts illegal content only because the two websites have an infrastructural connection, namely a shared IP address (Vladimir Kharitonov, para. 42). The Court has confirmed that such a blocking measure is arbitrary and unforeseeable. This is particularly important since shared IP hosting is a common practice for small and medium-sized websites thanks to its affordability. As a consequence of this judgment, it is safe to say that domestic authorities would be violating the Convention in all instances of blocking access to a shared IP address, which requires them to either increase their technical capabilities to target only the illegal content or implement blocking orders through hosting service providers.
Even since the 2015 judgment of Cengiz and Others v. Turkey, which was the most recent Strasbourg Court judgment on blocking access to websites before the four Russian judgments, the significance of the internet as a medium and forum for freedom of expression has grown exponentially. Within this context, the four new judgments against Russia provide important and timely standards on this topic. It is particularly significant that the Court has, for the first time, referred to the blocking of entire websites as an extreme measure comparable to banning a newspaper or TV station and, also, acknowledged the content-neutral nature of filter-bypassing technologies and the arbitrariness of blocking shared IP addresses.
Taken together with the previous judgments of Ahmet Yıldırım v. Turkey, Cengiz and Others v. Turkey, and Kablis v. Russia, the Strasbourg Court has now provided national governments with a comprehensive set of standards on drafting Convention-compliant internet laws. With that said, considering the tightening grip of the authorities on the internet and social media platforms in countries like Turkey, Azerbaijan, and Russia, it will not be a surprise if the Court is ‘provided with more opportunities’ to further refine its standards as the internet technologies continue to transform societies.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Principle 3: Absence of prior state control
“Public authorities should not, through general blocking or filtering measures, deny access by the public to information and other communication on the Internet, regardless of frontiers. This does not prevent the installation of filters for the protection of minors, in particular in places accessible to them, such as schools or libraries.
Provided that the safeguards of Article 10, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms are respected, measures may be taken to enforce the removal of clearly identifiable Internet content or, alternatively, the blockage of access to it, if the competent national authorities have taken a provisional or final decision on its illegality.”
31. States’ use of blocking or filtering technologies is frequently in violation of their obligation to guarantee the right to freedom of expression … Firstly, the specific conditions that justify blocking are not established in law, or are provided by law but in an overly broad and
vague manner, which risks content being blocked arbitrarily and excessively. Secondly, blocking is not justified to pursue aims which are listed under article 19, paragraph 3, of the International Covenant on Civil and Political Rights, and blocking lists are generally kept
secret, which makes it difficult to assess whether access to content is being restricted for a legitimate purpose. Thirdly, even where justification is provided, blocking measures constitute an unnecessary or disproportionate means to achieve the purported aim, as they are often not sufficiently targeted and render a wide range of content inaccessible beyond that which has been deemed illegal. Lastly, content is frequently blocked without the intervention of or possibility for review by a judicial or independent body …”
Section 10 provides that information may be freely disseminated in the
Russian Federation subject to the requirements of Russian legislation (subsection (1)). The dissemination of information which may not be disseminated under penalty of criminal or administrative sanction is prohibited (subsection (6)).
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