Website Blocking, Internet Shutdowns
Unwanted Witness-Uganda v. Attorney General
Closed Expands Expression
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The European Court of Human Rights unanimously held that the “wholesale blocking of opposition online media outlets” violates freedom of expression, ordering the Russian government to pay €10,000 as compensation to each applicant. This was after the applicants’ request before national courts for a judicial review of a blocking measure imposed by the Prosecutor General was dismissed. The blocking measure was made through the telecoms regulator on the basis that the websites owned by the applicants “revealed a uniform thematic trend towards the coverage of public events of an unlawful nature in Russian territory”. The European Court of Human Rights reasoned that “blocking access to an [entire] website was an extreme measure which … deliberately disregarded the distinction between the legal and illegal information the website might contain”, and that the “measures taken before a judicial decision had been issued on the illegality of the published content had amounted to a prior restraint on publications”.
This case involved three applicants: OOO Flavus, Kasparov, and OOO Mediafokus, respectively. The first applicant owned a registered news and opinion website and the second had a platform for independent bloggers focusing on social and political issues, while the third applicant owned an online daily newspaper many of its publications have been critical of the Russian Government.
In late 2013, the Russian Information Act was amended to “empower the Prosecutor General to identify [and submit a blocking request directly to the telecoms regulator against] websites containing calls for mass disorder, extremist activities, or participation in unauthorised mass gatherings” without a need for a court order [Para. 5].
In March 2014, the Prosecutor General sent a request to telecoms regulator, Roskomnadzor, to block the applicants’ websites which was implemented a day after on the basis that the websites contained “calls for extremist activities”. The Prosecutor General justified the blocking measure by noting that after examining these websites, it was clear that the published content showed “a uniform thematic trend towards the coverage of public events of an unlawful nature in Russian territory”.
In his request, the Prosecutor General noted that the website of the third applicant, OOO Mediafokus included a subsection on the mass disorder in the Bolotnaya Square which accumulates content on the protests held in Russia in support of those facing criminal proceedings because of that incident, claiming that “[these] illegal protests … are an acceptable and necessary form of expression …”. The request also mentioned that the first applicant’s website had an article entitled ‘Participants in a gathering in support of the Bolotnaya victims arrested [in the centre of Moscow]’ [which] describes [the] unlawful actions by the event participants … as being acceptable … and calling for participation in similar actions”. As for the second applicant’s website, the request referred to a featured article carrying the title ‘Property of the [Ukrainian] State to be nationalised in the Crimea’ and a pamphlet, inciting Crimean residents to commit unlawful actions [Para. 6].
In this regard, the applicants argued before the Taganskiy District Court and the Khamovnicheskiy District Court that “the indiscriminate blocking of access to the entire websites, without giving notice of the specific offending material…prevented the applicants from restoring access to their websites by removing the offending material…[and] had substantially restricted their right to impart information…”. [Par 8] Nevertheless, both Courts rejected the applicants’ complaints, holding that the “blocking measure had had no incidence on the applicants’ rights or freedoms” and that “the Prosecutor General’s office…determined that they were unlawful, [hence], [the telecoms regulator,] Roskomnadzor had lawfully implemented the Prosecutor General’s blocking request” [Para. 9].
Following that, the applicants submitted an appeal before the Moscow City Court which dismissed their appeals and upheld the District Courts’ decisions.
Upon the exhaustion of domestic remedies channels, Flavus, Kasparov, and Mediafokus submitted applications before the European Court of Human Rights which Declared the applications admissible.
The Third Section of the European Court of Human Rights rendered unanimously the decision.
The main issue before the Court to decide was whether the decision of the Russian authorities to block access to the applicants’ websites, powered by Section 15.3 of the Russian Information Act, had breached their right to freedom of expression under Article 10 of the Convention, reading in its related parts:
“1. Everyone has the right to freedom of expression. This right shall include freedom … to receive and impart information and ideas without interference by public authority and regardless of frontiers …
2. The exercise of these freedoms … may be subject to … restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others …”.
The relevant parts of Section 15.3 of the Information Act provided:
“1. If information disseminated through … including the Internet, containing calls for mass disorder … or participation in mass (public) events held in breach of the established procedure has been discovered … the Prosecutor General … shall order the federal law‑enforcement authority supervising the mass media, mass communications and information technologies to take measures to restrict access to information media distributing that information.
2. On the basis of the order mentioned in subsection 1 above, the federal law‑enforcement authority … shall immediately:
(1) order … the service providers to take measures to restrict access to the information medium, such as a website, or to the information published on it containing calls for mass disorder … or participation in mass (public) events held in breach of the established procedure. The order must mention the domain name of the website, the … (URL) of the webpage permitting identification of the information;
On one hand, the Government argued that the blocking measure had been necessary and proportionate as “calls for mass disorder, extremist activities or unauthorised mass gatherings” is deemed illegal content and the applicants, therefore, were legally required to take it down upon notification, yet failed to act accordingly [Para. 21].
On the other hand, the applicants argued that the blocking measure constituted a de facto ban on media activity and that the demands of the government were neither foreseeable nor consistent for two reasons: 1) The applicants neither received a copy of the Prosecutor General’s request nor were notified of the problematic content, thus had not been able to act accordingly and avoid blocking, and 2) The applicants had not been able to foresee the consequences of publishing specific content due to the contradictory and ever-changing demands by the authorities and whether the blocking would target the prohibited content or the entire website.
The applicants then claimed that Russian law had not offered any procedural safeguards against arbitrary interference, particularly a requirement of a prior judicial review of a blocking measure, “or an assessment of its necessity and proportionality”, leaving the Prosecutor General with unfettered power in blocking matters, which was “contrary to the rule of law in a democratic society” [Para. 23]. The applicants finally pleaded that the actual intent behind the blocking measure was to “prevent the dissemination of independent viewpoints … and actions by the opposition and civic movement”. And such a blocking measure was “clearly disproportionate and had a considerable chilling effect on journalists and civil activists … in Russia” [Para. 24].
There were also interventions by third parties [attached below] which emphasised that it is contrary to the legality condition to enact broad laws that afford the authorities unfettered discretion to restrict online expression. They also stressed that blanket website blocking is a disproportionate measure that “rarely, if ever, satisfied the criteria for permissible limitations on freedom of expression” [Para. 25]. They also highlighted that owners of problematic websites “should be informed and given a reasonable amount of time to remove the offending content and to make submissions before a decision was taken” [Para. 27] and that “anyone attempting to access a blocked website should be able to see the legal basis and reasons for the blocking order and information about avenues of appeal” [Para. 26].
In assessing the case at hand, the Court restated that the internet is now an essential means through which individuals exercise their right to freedom of expression and information. This is due to the internet’s role in facilitating the dissemination of information which allows for active participation in diverse dialogues around social and political issues of general interest.
In this regard, the Court noted that Article 10 guarantees the right to receive and impart information and extends to the right of the public to receive it as well. And it also protects both the content and its means of dissemination. Therefore, website blocking measures “engage the responsibility of the respondent State” and amounts to “interference by a public authority” with the above rights guaranteed under Article 10 [Para. 29]. The Court reiterated that a permissible interference under its well-established jurisprudence must fulfil the three-part accumulative test of legality, legitimacy, and necessity. For this, the Court will examine the three requirements together.
i. As for the legality, the Court noted that the “prescribed by law” requirement stipulates that a law must be accessible, foreseeable, and sufficiently precise to allow individuals to anticipate the consequences of a given action. The law when dealing with matters relevant to fundamental rights cannot grant the government unfettered legal discretion and must indicate with “sufficient clarity the scope of any discretion … and the manner of its exercise” as well as affording adequate safeguards against arbitrary interference by public authorities with these rights [Para. 30]. Therefore, the Court does not only assess whether “the State agency acted in accordance with the letter of domestic law” but it extends to assessing the quality of the questioned law as well [Para. 31].
Applying this to the case at hand, the Court noted that while subsection (2) of section 15.3 stipulates that the notification by the telecoms regulator has to specify “the URL of the web page permitting illegal content”, the actual notices sent by the telecoms regulator did not abide by that and “listed the website’s entire domain”. Accordingly, the Russian authorities “acted in an arbitrary manner which prevented the applicants from … taking down or modifying the specific content and formulating a legal objection to the Prosecutor General’s demand …” [Para. 32].
The Court also noted that section 15.3 of the Information Act, based on which the applicants’ websites were blocked, empowers the Prosecutor General to request the blocking of content depicting “calls for mass disorder or for participation in public events held in breach of the established procedure” [Para. 31]. And in relation to that, the Court previously held that the expression “public events held in breach of the established procedure” is overly broad in a way that leaves the Prosecutor General with unfettered power to “impose a blocking order for any breach of the procedure for conducting public events, no matter how trivial or innocuous, without having to establish a risk of disorder or of any real nuisance to the rights of others” [Para. 33].
Furthermore, the Court found that, contrary to the Prosecutor General’s interpretation, the writings featured on the blocked websites about protests in support of the defendants in the Bolotnaya case did not amount to calls for participation in unauthorised public events for three reasons. First, the applicants’ websites, which are media outlets, reported on the Bolotnaya case and “the developments in the proceedings and the arrests made by the police, consistent with their journalistic duty to keep the public informed on issues of general interest and to offer different perspectives, including those which may be critical of official policy”. Second, the blocking request failed to identify the problematic parts of the published content that referred to “planned public events … or inviting the public to participate in them”. Finally, publishing writings that support those who had faced criminal proceedings in relation to the Bolotnaya case are considered “expression on matters of public interest [which] is entitled to strong protection”. The Court for this ruled that the Prosecutor General’s interpretation “had no basis and was therefore arbitrary and manifestly unreasonable” [Para. 34].
Moreover, the Court noted that blocking a website for allegedly depicting a pamphlet inciting Crimeans to commit “unlawful actions” had no legal basis in section 15.3. And that the blocking request failed to specify the nature and elements of these unlawful actions or “the authority that allowed a Russian prosecutor to determine which conduct by non-Russian nationals living outside the Russian jurisdiction should be considered unlawful” [Para. 35]. Thus, the blocking measure “did not follow the procedure established in the domestic law and fell foul of the lawfulness requirement” [Para. 36].
ii. Moving to the legitimacy and necessity, the Court stressed that the entire blocking of a website is an extreme measure similar to a ban on mass media and fails to distinguish between the legal and illegal content published on the website, rendering “inaccessible large amounts of content which has not been identified as illegal” [Para. 37].
The Court stated that assuming that there were justifying grounds to impose a targeted blocking order on unlawful content available on the website, it cannot automatically extend to the entirety of the website, thus, a wholesale blocking measure “has to be justified on its own, separately and distinctly from the justification underlying the initial order” [Para. 38].
The Court entertained the powers vested in the authorities under section 15.3 which allow them to expand a restricted blocking measure to encompass an entire website, ruling that “any indiscriminate blocking measure which interferes with lawful content or websites as a collateral effect of a measure aimed at illegal content or websites amounts to arbitrary interference with the rights of the owners of such websites” [Para. 38].
The Court emphasised that the Russian government neither submitted the legitimate aim nor the pressing social need behind the blocking measure against the applicants’ websites, hence, the restriction did not pursue any legitimate aim. The Court also noted that international human rights standards do not, in any event, consider the imposition of blocking measures against online media and websites “critical of the government or political system” a restriction necessary in a democratic society.
iii. Turning to the safeguards against abuse issue, the Court held that the Russian law failed to provide adequate safeguards against the blocking measure which was deemed by the Court as a prior restraint given that it was issued without a judicial decision. The Court stressed that given the significant adverse impact of prior restraints, particularly in relation to media outlets, necessitates a careful scrutiny, because “news is a perishable commodity and to delay its publication … may well deprive it of all its value and interest”. Therefore, the relevant legal framework has to lay down “tight control over the scope of bans and an effective Convention-compliant judicial review” [Para. 39].
The Court elaborated that such failure was well evident in the absence of any procedural safeguards in the Information Act in 4 occasions: 1) it did not require involving the affected parties, leading to the issuance of the blocking orders without prior notification to the applicants; 2) it did not set out a duty on the authorities to perform an impact assessment prior to the execution of the blocking order; 3) it neither obliged the government to justify the necessity and proportionality of blocking measures nor “the urgency of their immediate enforcement without giving the interested parties the opportunity to remove the illegal content or apply for a judicial review”; and 3) it did not grant the power to issue such blocking orders to a court or an independent adjudicatory body, allowing the concerned parties a space to be heard [Para. 40].
Additionally, the Court noted that the Information Act lacked any transparency requirement by not requiring the government to communicate the blocking request to the applicants who remained unaware of the reasons behind the blocking “until after access to their websites had been blocked and they had applied for a judicial review” [Para. 42].
Finally, the Court underlined that the unfettered power granted to the authorities under the Information Act made it almost impossible for the applicants to challenge the blocking order before national courts which, as expected, did not “weigh up the various interests at stake, in particular … the need to block access to the entire websites”. National Courts by confining their assessment to whether the authorities exercised the discretion afforded to them erred for not complying with “the Plenary Supreme Court’s Ruling no. 21 of 27 June 2013, which required them to have regard to the criteria established in the Convention in its interpretation by the Court”. Such interpretation requires that consideration should be paid to the fact that “rendering large quantities of information inaccessible substantially restricted the rights of Internet users and had a significant collateral effect” [Para. 43].
In conclusion, the Court held that the blanket blocking measure imposed on the applicants’ websites was excessive and arbitrary, hence, unjustifiable. The Court also ruled that despite the existence of domestic grievance channels, national courts failed to examine the substance of the grievances or scrutinise the authorities’ disregard for the requirement of necessity and proportionality of the blocking measures.
Accordingly, there has been a violation of both Article 10 and Article 13 of the Convention, and for this, the Court ordered the government to pay “EUR 10,000 (ten thousand euros) to each applicant in respect of non-pecuniary damage”.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision has set a precedent that blanket blocking of online platforms violates freedom of expression and cannot be justified under the European Convention on Human Rights. The decision has also stressed that non-judicial blocking orders amount to a prior restraint on publications which can justifiably be issued only in exceptional circumstances and after strict scrutiny by Courts. The decision further emphasised that domestic law must provide adequate safeguards to individuals against arbitrary interference and that these safeguards should encompass “procedural guarantees”, “disallowance of unfettered authority”, “transparency”, and “national courts’ compliance with the criteria established by the European Court”.
OOO Flavus and Others 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.
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