Content Regulation / Censorship, Freedom of Association and Assembly / Protests, Hate Speech, Political Expression
Brandenburg v. Ohio
Closed Expands Expression
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The European Court of Human Rights held that prohibiting Mr. Grigoiy Kablis from holding a demonstration, and ordering the removal of his online posts about it, violated his rights to freedom of expression and public assembly, protected by Articles 10 and 11 of the European Convention on Human Rights, respectively. In September 2015, following news that Russian law enforcement launched a criminal investigation into senior officials of the Komi Republic, north-east Russia, Mr. Kablis sought permission from the municipal authorities to hold a public gathering for around fifty persons in the main town square. He also published three blog entries and a social media post about the gathering, the criminal investigation, and other political topics. The authorities refused his request, blocked his blog, and forced the social media company to delete his account. Mr. Kablis unsuccessfully complained against the refusal and the blocking in Russian courts. The European Court of Human Rights held that the Russian government failed to show that it was necessary in a democratic society to refuse Mr. Kablis’s request to hold a picket. The Court also held that the blocking equated to prior restraint and the authorities failed to provide relevant and sufficient reasons for interfering with his right to freedom of expression.
On 19 September 2015 the Federal Security Service and the Investigations Committee of the Russian Federation announced that it opened criminal proceedings against the several senior officials of the Komi Republic, including its governor Mr. Gaizer, on suspicion of fraud and membership in a criminal gang.
On 21 September 2015, Mr. Kablis and Mr. S notified the Syktyvkar Town Administration of their intention to picket on Stefanovskaya Square on 25 September 2015, which fifty people were expected to attend, to discuss criminal proceedings launched against the Komi Government. On the same day, Mr. Kablis published a blog post in which he:
On 22 September 2015, the Syktyvkar Town Administration refused Mr. Kablis’s request because Stefanovskaya Square fell within the area in the immediate vicinity of the Constitutional Court of the Komi Republic, where the holding of public events was prohibited by the Syktyvkar’s town administration’s decree no. 9/3483 of 4 September 2013. As an alternative, the Town Administration offered Mr. Kablis a list of other locations where he could hold his picket.
Later that day, Mr. Kablis published a new blog post about the Town Administration’s refusal. He said that a “people’s assembly” would be held at Stefanovskaya Square and claimed that the official who “signed the refusal to approve the ‘picket’ was the same official who had been responsible for a 30% increase in the cost of heating in the previous two years.” [para. 10] On 23 September 2015, in a post on VKontakte, Russia’s social networking site, Mr. Kablis called for participation in the gathering on 25 September 2015. On 24 September 2015, VKontakte blocked Mr. Kablis’s account on the basis of an order from the Federal Service for Supervision of Communications, Information Technology and Mass Media and a deputy Prosecutor General of the Russian Federation. The Prosecutor found that the VKontakte post “amounted to campaigning for participation in an unlawful public event in breach of section 10 paragraph 1 of the Public Events Act.” [para. 12]
On 25 September 2015 the applicant published a third entry on his blog, conceding that high participation in his “people’s assembly” would not “make the Kremlin change its politics, appoint a responsible local person as the governor of the Komi Republic or stop unsubstantiated accusations against Mr. Gaiser. He claimed, however, that a high participation rate would show that there were many people who were not afraid to express their opinion. The FSB and the Prosecutor General’s office were afraid of politically active people. He called on everyone to come to the people’s assembly to prevent similar situations in future.” [para. 13] Later that day, the administrator of the Internet site that hosted Mr. Kablis’s blog informed him by email that on the order of the Prosecutor General’s office, access to the three blog entries mentioned above was restricted.
In the evening on 25 September 2015, about fifty people gathered for the “people’s assembly” at a location near Stefanovskaya Square, which went peacefully and without any disturbance.
Mr. Kablis’s Domestic Lawsuit Over the Refusal to Hold the Picket
“On 26 October 2015, Mr. Kablis challenged before the Syktyvkar Town Court the town administration’s decision of 21 September 2015 refusing to approve the location of the picket. He submitted, in particular, that the ‘picket’ had been intended to take place fifty metres from Stefanovskaya Square. In any event, it would not have caused any disturbance or inconvenience. The special designated locations proposed by the town administration would have been unsuitable.” [para. 16] On 18 November 2015, citing Article 11 of the European Convention on Human Rights and domestic law, the Syktyvkar Town Court rejected Mr. Kablis’s complaint.
Mr. Kablis appealed, arguing that the location for his picket was not within the prohibited area, and that the town administration’s decree, which allegedly prohibited public events at that location, had never been published and was therefore not accessible to the public. [para. 18] On 28 January 2016, the Supreme Court of the Komi Republic upheld the November 2015 judgment. It held that there were objective and sufficient reasons for the town administration’s refusal of Mr. Kablis’s request. Further, the Court held that the town administration “fulfilled its statutory obligation to propose an alternative location for the public event that was compatible with its purposes.” [para. 19] Mr. Kablis lodged a cassation appeal, but on “19 July 2016 a judge of the Supreme Court of the Komi Republic refused to refer [his] cassation appeal to the Presidium of that court for examination, having found no significant violations of substantive or procedural law which had influenced the outcome of the proceedings.” [para. 21]
Mr. Kablis’s Domestic Lawsuit Against the Blocking of his Blog Entries and VKontakte Account
On 25 December 2015, Mr. Kablis argued before the Syktyvkar Town Court that the decisions of the prosecutor’s office to block his VKontakte account and three entries on his Internet blog breached his right to freedom of expression. On 5 April 2016, the Syktyvkar Town Court dismissed the claim, citing domestic law and Article 10 of the European Convention on Human Rights. Concerning the blog posts, the court explained that access to them was restricted because they distributed “information containing calls for participation in a public event to be held in breach of the established procedure.” [para. 23] “Restriction of access to the entire VKontakte account, rather than to the specific post, also had a basis in law, which in substance provides for restriction of access to an entire account, taking into consideration the nature of real-time distribution of publicly accessible content on the Internet.” [para. 23] The judgment was upheld on appeal before the Supreme Courts of the Komi Republic and of the Russian Federation.
Mr. Kablis complained before the European Court of Human Rights that the restrictions imposed by the authorities violated his freedom of expression under Articles 10 and right to public assembly under Article 11 of the European Convention on Human Rights (ECHR).
The European Court of Human Rights fist considered whether the Russian authorities violated Mr. Kablis’s freedom of peaceful assembly as guaranteed by Article 11 ECHR, followed by a review of alleged violations of Mr. Kablis’s freedom of expression under Article 10.
Mr. Kablis explained that Stefanovskaya Square, the town’s main square, was historically used for public events due to its location. He then argued that the Syktyvkar Town Administration’s decree no. 9/3483 violated Constitutional Court precedent, which required zoning decisions to be “objectively justified by the aim of ensuring the normal functioning of a court.” [para. 46] Here, the decree zoned a very large area surrounding the court house, which was not necessary to “ensure the normal functioning of that court, which occupied several offices on the seventh floor of an office building. Nor was it necessary to prohibit the holding of public events in the vicinity of the court house during periods when it was not in session, as well as on weekends and public holidays.” [para. 46] Mr. Kablis also noted that at least twenty-five events had been held at Stefanovskaya Square in 2016, showing that the prohibition was not always followed. Moreover, Mr. Kablis stressed that he requested to hold the demonstration near Stefanovskaya square, which did not fall within the prohibited zone. Lastly, he argued that the alternative locations proposed by the town administration were “remote and desolate, and therefore unsuitable.” [para. 47]
The Russian Government argued that the prohibition to hold public events in the vicinity of court buildings was justified for security reasons, “as well as aimed to protect the independence of the judiciary and to prevent pressure being put on judges.” [para. 49] The Government also rejected Mr. Kablis’s claim that he requested to hold the demonstration outside the prohibited area. Lastly, the Government contended that the alternative locations proposed by the town administration were suitable and used frequently by others, including by Mr. Kablis, to hold events.
The European Court of Human Rights focused its analysis on ascertaining “whether the interference was ‘prescribed by law’, pursued one or more legitimate aims under paragraph 2 of Article 11, and was ‘necessary in a democratic society’ for the achievement of the aim or aims in question.” [para. 50]
The European Court recalled its judgment in Lashmankin and Others v Russia finding that a general ban under the Public Events Act “on holding public events in the vicinity of court buildings is incompatible with Article 11 § 2, taking into account its absolute nature coupled with the local executive authorities’ wide discretion in determining what is considered to be ‘in the immediate vicinity.’” [para. 52] The European Court did not see any reason to reach a different conclusion in this case and ruled that the refusal to allow Mr. Kablis to hold a demonstration at his preferred location because it was in the vicinity of the Constitutional Court of the Komi Republic could not, therefore, be regarded as being ‘necessary in a democratic society’ within the meaning of Article 11.” [para. 52]
Russia’s Public Events Act permitted regional legislatures to designate locations where public events could not be held if such events interfere “with the normal functioning of public utility services, transport, social or communications services, or hinder the passage of pedestrians or vehicles or the access of citizens to residential buildings, transport or social facilities.” [para. 53] Once again referring to Lashmankin and Others v Russia, the European Court explained that although relevant, those reasons were not “in themselves sufficient to justify a proposal to change the location of a public event.” [para. 53]
The European Court stressed that a general ban on demonstration is permissible only when there exists a real danger of disorder that cannot be prevented by less stringent measures. In implementing such bans, the authorities must consider if security considerations outweigh restrictions on demonstrations which do not pose a danger to public order. “Only if the disadvantage of such demonstrations being caught by the ban is clearly outweighed by the security considerations justifying the issue of the ban, and if there is no possibility of avoiding such undesirable side effects of the ban by a narrow circumscription of its scope in terms of territorial application and duration, can the ban be regarded as being necessary within the meaning of Article 11 Article.” [para. 55] In the present case, the regional authorities did not make claims that a general prohibition on public events in Stefanovskaya Square aimed to prevent public disorder or other security risks. The regional ban simply repeated the language of the Public Events Act, which the European Court found was incompatible with the Convention. The Court added that it was “significant that neither the regional law itself, nor any other legal provision or judicial interpretation explained which of the above circumstances were relevant to Stefanovskaya Square and why.” [para. 55]
Furthermore, the European Court criticized the Russian authorities for failing to explain why a general ban was preferred over some provision allowing a case-by-case examination. The domestic authorities also did not argue that the ban was not prone to abuse, discrimination or arbitrariness. Lastly, the general ban was not limited in time and applied to all public events, irrespective of the number of participants and the event’s potential to cause disruptions of people’s ordinary life. The European Court thus concluded that the Russian Government failed to prove that the general ban on holding public events in Stefanovskaya Square had been the subject of “an exacting parliamentary and judicial review.” [para. 56]
Based on the above, the European Court of Human Rights found that the refusal to approve the location of Mr. Kablis’s picket was not “necessary in a democratic society” within the meaning of Article 11(2) of the European Convention on Human Rights.
Mr. Kablis complained that that the blocking of his VKontakte account and of three entries on his blog calling for participation in an unauthorized picket violated his right to freedom of expression. His complaint was based on several points:
The Russian Government responded by reiterating that the Town Administration had refused to approve the public event planned by Mr. Kablis, and despite this he had described the preparations for holding the event on his VKontakte page and on his blog, thus the blocking of his VKontakte account and of the blog posts was lawful and pursued the legitimate aim of preventing breaches of information distribution rules. The Government denied that Mr. Kablis’s blog posts were blocked because of his statements about the goals of the picket. Additionally, “restriction of access to the entire VKontakte account rather than to the specific post had also had a basis in domestic law and had been justified by the real-time distribution of publicly accessible content on the Internet.” [para. 78] Mr. Kablis’s account would have been unblocked if he deleted the unlawful content, or he could have created have created a new account, therefore his freedom of expression was not restricted.
The Court explained that an “interference will constitute a breach of Article 10 unless it is ‘prescribed by law,’ pursues one or more of the legitimate aims referred to in Article 10(2) and is ‘necessary in a democratic society’ to achieve those aims.” [para. 85] The Court reviewed the elements of “existence of a legitimate aim” and “necessity in a democratic society” together explaining that they could not be disassociated in the present case.
The Court recalled that the Russian court approved the blocking to prevent breaches of the Information Act and to prevent violations of public order. Concerning the latter aim, the European Court noted that Article 10 and Article 11 did not allow for restrictions aimed at maintenance, or protection, of public order. As for the domestic courts’ argument that the blocking aimed to prevent violations of the Information Act, “they did not explain which of the legitimate aims listed in the second paragraph of Article 10 that corresponded to.” [para. 88] The Russian authorities also never claimed that Mr. Kablis’s picket presented a risk to public safety or public order. The European Court thus deduced that the only aim of the blocking measure was to enforce the rules governing public events and the circulation of information about them.
Given the above, the Court assumed that the blocking of publications which call for participation in a public event in breach of those procedures and rules also pursues the legitimate aim of protecting the rights of others.
However, the European Court entertained the Constitutional Court’s “argument that the notification procedure for public events and the prohibition on campaigning for participation before that procedure has been successfully completed apparently aim[ed] at protecting the rights of others.” In the current case, the European Court noted that Russian authorities ordered the ban before a judicial decision was issued on the illegality of the published content, and therefore it amounted to a prior restraint. The Court explained that although Article 10 did not prohibit prior restraints on publications, such actions could only be justified in exception circumstances and called for the “most careful scrutiny.” Such precautions applied to any publications that deal with a topical issue.
The European Court stressed that in prior restraint cases, a legal framework that established “precise and specific rules regarding the application of preventive restrictions on freedom of expression” were required in order to ensure “tight control over the scope of bans and effective judicial review to prevent any abuse of power.” [para. 92] Compared to the outlined legal framework, section 15.3 of the Information Act was too broad and vague, and allowed the Prosecutor General’s to block access to Internet posts and entire websites containing any breach of the procedure for the conduct of public events, no matter how small or innocuous. Further, Section 15.3 of the Information Act did not oblige the Prosecutor General to examine whether the wholesale blocking of the entire website or webpage, rather than of a specific information item published on it was necessary, despite being obliged to do so by the European Convention on Human Rights and the case law of the European Court of Human Rights. Although the Prosecutor General’s powers to block Internet posts containing calls to participate in public events could be subject to judicial review, the breadth of prosecutorial discretion would make it difficult, if not impossible, to challenge the blocking measure in court. Furthermore, the European Court noted that due to a short and tight time frame to challenge the blocking, there was no guarantee that a complaint against a blocking measure would be decided before the planned date of the event. The European Court thus concluded that “the blocking procedure provided for by section 15.3 of the Information Act lack[ed] the necessary guarantees against abuse required by the Court’s case-law for prior restraint measures, in particular tight control over the scope of bans and effective judicial review to prevent any abuse of power.” [para. 97]
The European Court then turned to the content of the Internet posts at issue, and noted that only two of the four posts contained calls to participate in the public event planned by Mr. Kablis. The other two blocked posts concerned issues of public interest that were paramount importance for the regional community and contributed to an ongoing political debate. The Court reiterated that expression on matters of public interest was entitled to strong protection. Although the remaining two posts contained information about an illegal assembly, the European Court reminded that it was “important for the public authorities to show a certain degree of tolerance towards peaceful unlawful gatherings. [para. 102] Citing Sunday Times v. the United Kingdom, the Court further noted “that it [was] normally not sufficient that the interference was imposed because its subject-matter fell within a particular category or was caught by a legal rule formulated in general or absolute terms; what [was] rather required is that it was necessary in the specific circumstances.” [para. 103] Thus, Mr. Kablis’s call for participation in a public event held in breach of the law was not sufficient in itself to justify an interference with his freedom of expression.
The Court then noted that “in view of the event’s location, small size and peaceful character, there is no reason to believe that it would have been necessary for the authorities to intervene to guarantee its smooth conduct and the safety of the participants and passers-by, for example by diverting traffic. Lastly, as noted above, the applicant explicitly and clearly stated on his blog that the public event had not been duly approved.” [para. 104]
Considering the above, the European Court held that Russia’s law lacked the necessary guarantees against abuse for prior restraint measures, the standards applied by the domestic courts were not in conformity with the principles embodied in Article 10, and Russian courts did not provide “relevant and sufficient” reasons for the interference with the applicant’s right to freedom of expression. [para. 106]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
As noted by Profesor Voorhoof, “the Kablis judgment in particular is an important and timely judgment on national legislation permitting the blocking of social media accounts (and posts) within 24 hours, and without any judicial order. The Court rightly characterised such measures as ‘prior restraint’, carrying the inherent dangers associated with preventive restrictions on free expression. As such, the Court applied its highest standard of scrutiny under Article 10 – most careful scrutiny – finding that the blocking procedure violated Article 10 ECHR.” Professor Voorhoof hoped that the judgment could “serve as a benchmark for the Court’s future approach to other national legislation adopting (unfortunately) similar approaches to ‘illegal material’”
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