Content Regulation / Censorship
Loughran v. Century Newspapers Ltd
Closed Expands Expression
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The European Court of Human Rights (ECtHR) ruled that the Russian domestic court decision, which forced the applicant to remove legitimate content from their website, amounted to a violation of the applicant’s right to impart information (Article 10) and the right to an effective remedy (Article 13 read in conjunction with Article 10) of the European Convention of Human Rights (ECHR). The domestic court determined that a segment of the applicant’s website – a webpage with information about filter-bypassing technologies – had composed prohibited content, which could have enabled users to access extremist sources. The domestic court directed the telecoms regulator to block the website. The blocking order was not implemented since the applicant had removed the webpage in question upon the regulator’s notice in order to avoid the entire website being blocked. The applicant appealed against the order, which the domestic court summarily rejected. 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 2015, Mr. Grégory Engels (hereinafter “the applicant”), discovered that a domestic court had directed the domestic telecoms regulator to block access to their website. The impugned website was co-founded by the applicant and local Russian activists in 2012, to cater specifically to news, information, analysis and research relating to freedom of expression online, online privacy issues, copyrights and digital communications. The website contained a webpage (“rublacklist.net/bypass”) which provided a list and short description of tools and software for bypassing restrictions on private communications and content filters on the internet, such as virtual private networks, the Tor browser, the “invisible Internet” (I2P) technology, the “turbo” mode in web browsers, and the use of online translation engines for accessing content.
The applicant discovered that the domestic court had, on the request of a regional prosecutor, found the filter-bypassing content to be prohibited content on the ground that such technologies may enable users to bypass filters and access extremist material on other websites. The court ordered the telecoms regulator to block access to it, pursuant to the powers conferred to it under section 15.1(5), second part, of the Information Act (Federal Law no. 149-FZ of 27 July 2006) that stated that content may be deemed illegal and added to the telecoms regulator’s list of prohibited content where a judicial decision identifies it as “constituting information the dissemination of which should be prohibited in Russia” [para.11]. The telecoms regulator requested the applicant to take down the impugned webpage, else the entire website will be blocked. The applicant obliged and removed the webpage.
The applicant appealed against the order, stating that: first, the applicant’s full contact details were listed on the website; second, that the examination of the prosecutor’s claim in their absence breached the principle of fairness; third; that providing information about tools and software for protection of privacy of browsing were not violative of any Russian law. In late 2015, this appeal was summarily rejected.
The primary issues before the ECtHR were: (i) whether the court decision requiring the Applicants to remove information from their website 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 Government argued that the information about the filter-bypass technologies provided for in the impugned webpage had enabled users to gain unlimited access to prohibited extremist material, including a collection of material on the Federal List of Extremist Material. The legal framework for updating the Integrated Register is sufficiently clear and foreseeable; and the court decision and subsequent listing of the webpage on the Integrated Register have been legal, justified, and necessary measures.
The applicant argued that the measure interfered with their right to impart information since they had been forced to take down legitimate content to avoid their entire website getting blocked. They further argued that the authorities neither cited any legal provision restricting information about tools for filter-free browsing, nor did they show that the webpage contained any extremist or territorial material. In fact, the decision to take it down violated section 3 principle 8 of the Information Act, that information about tools for filter-free browsing. Further, the second part of section 15.1(5) of the Information Act failed to meet the foreseeability requirement, allowing courts to deem any content illegal, without specifying the nature or category of such content. The legal framework that enabled the wholesale blocking of websites lacked precision, with the effect that entire websites could be blocked on the ground of it contained some offending material.
The third-party interveners, in their submissions, reiterated that “individuals should be allowed to enjoy freedom of expression in online space to the same extent that they enjoyed it offline” [para. 21]. 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. Restrictions 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 time to remove the offending content, and allowed to make a submission before any decision is given.
Further, it was also highlighted that “blocking of information about virtual private networks (VPN) and similar technologies could never be justified because such technologies were content-neutral and blocking interfered with access to all content which might be obtained using those technologies” [para. 22]. Blocking of such content is “inherently incapable of being defined by reference to categories of legitimately proscribed content” [para. 22]. 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.”
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. 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. Despite the fact that the domestic telecoms regulator did not block the applicant’s website itself, the applicant was coerced into removing the impugned webpage from their website to avoid their entire website from being blocked by the regulator. Removal of the alleged illegal content on the impugned webpage also resulted in preventing users of the website from accessing the content. Accordingly, the Court considered the same to be an “interference by a public authority”, affecting not only the right to receive and impart information but also the right of the public to receive it.
Further, the Court noted the relevant domestic law, the statutory basis for the interference, section 15.1(5) of the Information Act, which lists three types of decisions by which the Russian authorities may categorize online content as illegal. The Court observed that the second part of this provision, which provided that content may be deemed illegal and added to the telecoms regulator’s list of prohibited content where a judicial decision identifies it as “constituting information the dissemination of which should be prohibited in Russia”, is a vague and overly broad legal provision that fails to satisfy the foreseeability requirement. Website owners, such as the applicant, cannot foresee what content is susceptible to being banned and regulate their conduct accordingly.
Furthermore, the Court also noted that the instant case demonstrates the manner in which this legal provision can produce arbitrary effects in practice. The domestic court had failed to establish that the filter-bypassing technologies were illegal in Russia or that providing information about them was contrary to any Russian law; the domestic court also did not find any prohibited content on the applicant’s website. The only foundation for the domestic court’s conclusion was that these technologies might enable users to access extremist content on other sites, a fact that the applicant had no control over. Importantly, the Court noted that the “utility of filter-bypassing technologies cannot be reduced to a tool for malevolently seeking to obtain extremist content” [para. 29]; these serve various legitimate purposes such as “enabling secure links to remote servers, channelling data through faster servers to reduce page-loading time on slow connections, and providing a quick and free online translation” [para. 29]. The Court also noted the submissions of the third-party interveners that information technologies are content-neutral; and that all information technologies, from the printing press to the Internet, have been developed to store, retrieve and process information. Suppressing information about technologies on the basis that they might be misused is no different from restricting access to printers and photocopiers because they can be used for reproducing such material [see para. 30].
The Court also noted that section 15.1(5), second part, of the Information Act affords such broad discretion that it would be extremely difficult to challenge the court’s decision on appeal. Russian law does not provide website owners, such as the applicant, with any procedural safeguards capable of protecting them against arbitrary interference, nor did not require the involvement of such owners in proceedings. Despite the fact that the applicant’s contact details were posted on their website, they were not informed or even called upon to explain; the domestic court instead made it a matter between the prosecutor and the local internet service provider. 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 provides access to; it cannot know the contents of websites nor defend them and has no vested interest in the outcome of the proceedings. The blocking proceedings were not adversarial in nature. The prosecutors and the domestic court that gave the original decision failed to, firstly, make an assessment of the impact of the blocking measure prior to its implementation, and secondly, explain the urgency of implementing it without providing interested parties with the opportunity to be heard.
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. 33]. The domestic courts also failed to weigh the various interests at stake, and instead “confined their scrutiny to establishing formal compliance with the letter of the law” [para. 33]. The court noted that a Convention-compliant review would have, inter alia, noted that the “blocking measure, by rendering large quantities of legitimate information inaccessible, substantially restricted the rights of the website owner and of Internet users, and had a significant collateral effect” [para. 33].
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.
Regarding the alleged violation of Article 13 read in conjunction with Article 10
The Government argued that the applicant had effective domestic remedies; since access to the website was not blocked, there was no violation.
The applicant argued that the domestic remedies were not effective; they were not involved in the court proceedings when the original order of website blocking was passed nor did the appellate court consider the nature or the contents of their website, or the manner in which the original court’s decision had affected their rights.
The third-party interveners submitted 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.
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 to appeal 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.
Accordingly, the Court determined that the domestic remedy was not “effective” within the meaning of Article 13.
As regards damages
In light of the above observations, the ECtHR held that the respondent State is to pay the applicant EUR 10,000 as compensation.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Engels 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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