Content Regulation / Censorship, Internet Shutdowns, National Security
Banashree Gogoi v. Union of India
Closed Expands Expression
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The Third Section of the European Court of Human Rights unanimously concluded that Russian authorities violated freedom of expression by blocking an online magazine critical of the Russian authorities. The case revolves around OOO Mediafokus, the owner of the online magazine Ezhednevnyy Zhurnal, which has been critical of Russian authorities since 2014. In March, 2014, the Prosecutor General requested to block the website, alleging “calls for extremist activities.” This prompted the creation of a new website in 2015. Despite the new website having distinct content and not existing at the time of the request, it was deemed a “mirror” and subsequently blocked in 2017. The European Court of Human Rights emphasized the lack of legal clarity in defining “mirror” websites and the absence of procedural safeguards in Russian law, concluding that the interference was not “prescribed by law.” The Court held that Russia violated Article 10 of the European Convention on Human Rights (ECHR) and awarded the applicant EUR 7,500 in non-pecuniary damages.
OOO Mediafokus, the Applicant, owned an online magazine known as Ezhednevnyy Zhurnal (www.ej.ru). Since 2014, this platform has been dedicated to publishing research and analysis by political scientists, economists, and journalists, many of whom express critical perspectives on the Russian authorities. On March 13, 2014, the Prosecutor General sent a request to the telecoms regulator, Roskomnadzor, to block the Applicants’ website, or its “mirrors”, on the basis that it contained “calls for extremist activities.” Similarly, in another case, the Prosecutor General had requested the Roskomnadzor, to block the websites of OOO Flavus, Kasparov, and OOO Mediafokus for similar reasons. [Case of OOO Flavus and Others v. Russia, (2020)] [para. 1-3]
In 2015, the Applicant created a new website (www.ej2015.ru). The content of the original website was not moved to this new portal. Later, in November 2017, the Applicant found that the new website had also been blocked. Upon inquiry with Roskomnadzor, it was found that the new website has been blocked following the Prosecutor General’s blocking request of March 13, 2014, as the new website was a “mirror” of the original one and contained “calls for extremist activities.”
The Applicant asked Roskomnadzor to identify the specific web pages with offending material. On December 11, 2017, Roskomnadzor, without explaining the reason or nature of the offending content, argued that the blocking of the new website fell within the scope of the Prosecutor General’s blocking request of March 13, 2014. The Applicant filed a complaint before the District Court. [para. 4-6]
On May 15, 2018, the Taganskiy District Court in Moscow dismissed the complaint reasoning that it had already assessed the constitutionality of the Prosecutor General’s Blocking request in the Case of OOO Flavus. In the case of OOO Flavus, the District Court held that the Prosecutor General’s office had carried out an assessment of the websites and determined that they were unlawful, thus, the blocking measure does not violate the Applicant’s (therein) rights or freedoms. In the present case, the Applicant contended that the Prosecutor General’s 2014 blocking request didn’t include blocking the new website. The District Court disregarded this contention on the account that the law did not require the Prosecutor General to reference all websites to which access had to be restricted. The Court refused to examine the content of the new website, holding that Roskomnadzor’s assertion that the offending content was present on it, was sufficient evidence of its existence. It also held that Roskomnadzor was not required to identify specific web pages containing offending content.
Following that, the Applicant submitted an appeal, before the Moscow City Court, which was dismissed on the reasoning that “a lack of the statutory definition of the term ‘mirror website’ does not render the Prosecutor General’s blocking request unlawful, since the Applicant had set up a copy of the website www.ej.ru with a new domain name. The fact that the ‘mirror website’ is owned by the Applicant is apparent from its application to a court.” [para. 8]
On February 11 and April 18, 2019, the Moscow City Court and the Supreme Court of Russia, respectively, denied the Applicant permission to appeal to a cassation instance.
Justice Georgios A. Serghides, Justice Jolien Schukking, and Justice Darian Pavli delivered a unanimous decision for the European Court of Human Rights. The primary issue the Court assessed was whether the complete blocking of a new website of an online media outlet, based on the argument that its content “mirrored” the prohibited content on its previous website, amounts to a violation of freedom of expression under Article 10 of the European Convention of Human Rights (‘Convention’).
The Court first acknowledged that blocking a website constitutes an interference by a public authority with the right to receive and disseminate information, and it must meet the requirements of the three-part test, i.e. be prescribed by law, have a legitimate aim, and be necessary in a democratic society to be considered lawful.
Considering the inteference, the Court observed that domestic law empowers authorities to block websites containing explicitly identified objectionable content. This legal framework also provides an avenue for website owners to regain access by rectifying the issue once the offending content has been removed. However, the Court emphasized that the practicality of this option hinges on the clear identification of the offending content. Without such specificity, website owners would be left uncertain about which content needs removal to restore access.
The Court highlighted critical deficiencies in the Prosecutor General’s request to block the Applicant company’s original website, noting that it was even less justified for the subsequent blocking of its new website, which did not exist when the request was issued and featured entirely different content. The Court noted that this fundamental timeline mismatch rendered the 2014 request inadequate, as it could not reasonably apply to allegedly illegal content that only emerged in 2015, violating the legal requirement for the blocking measure to specify the location of the webpage containing illegal content.
Furthermore, the Court emphasized the lack of clarity regarding the term “mirror” websites, which was referenced in the 2014 request. The absence of a legal definition and criteria for identifying such websites in domestic law led to a flawed decision by the national courts. The finding that the new website should be blocked solely because it shared a similar name and owner as the previously blocked site lacked a clear and foreseeable legal basis.
The Court noted that domestic courts failed to recognize that the new website was an original platform with distinct content, as they refrained from inspecting its allegedly offending material. Moreover, the Court reiterated its earlier observation made in OOO Flavus and Others v. Russia, (2020) that Russian law lacks crucial procedural safeguards to shield website owners from arbitrary interferences. The Court held that the absence of provisions allowing their participation in blocking proceedings, the inability to remove offending content before the decision takes effect, and the failure to mandate authorities to assess the impact and justify the necessity of blocking measures contributed to the violation of freedom of expression online under Article 10 of the Convention.
Conclusively, the Court held that the interference was not prescribed by law due to the arbitrary application of the concept of “mirror” websites and the absence of identification of offending content. The Court concluded that there was a violation of Article 10 of the Convention. The Court awarded the Applicant EUR 7,500 (Approximately 8,127 USD) for non-pecuniary damage.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This ruling expands freedom of expression by affirming the principle that online media outlets should not be arbitrarily blocked by authorities. The Court emphasized the need for clear legal justifications and procedural safeguards when restricting access to websites. By scrutinizing the Prosecutor General’s request and the subsequent blocking of the applicant company’s new website, the Court underscored the importance of specificity in identifying objectionable content and the lack of a legal basis for blocking websites solely based on being a “mirror” of another. This decision sets a precedent arguing that restrictions on online media must be lawful, legitimate, and necessary in a democratic society, ensuring that freedom of expression is safeguarded even in the digital realm. The ruling encourages a more nuanced and rights-respecting approach to regulating online content, reinforcing the idea that any interference with freedom of expression must adhere to well-defined legal standards.
This ruling aligns with the reasoning established in previous cases, including OOO Flavus and Others v. Russia (2020), Bulgakov v. Russia (2020), Engels v. Russia (2020), and Vladimir Kharitonov v. Russia (2020). In these collective judgments, the European Court of Human Rights addressed concerns related to the blocking of website access, marking a significant triumph for the safeguarding of online free speech in Russia. These rulings not only set crucial precedents but also serve as guiding principles for other Member States, urging them to reconsider and potentially modify their internet laws to comply with the standards outlined by the Court.
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