Content Regulation / Censorship, Hate Speech, National Security
Government of Kazakhstan v. Respublika
Closed Expands Expression
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In a seminal judgment, Russia’s Supreme Court held that Mr. Tonkoshkurov’s rights were violated when a lower instance court refused to allow him to appeal an order that blocked his website. Mr. Tonkoshkurov was the website administrator of Bitcoininfo.ru, a website that provided information on cryptocurrencies. The Russian authorities blocked the website on the grounds that it provided information about virtual currencies, which violated Russian financial and information laws. Mr. Tonkoshkurov was not involved in the legal process that resulted in the blocking of his website. When he attempted to appeal the blocking orders, courts refused to hear him on the grounds that he had no standing in the case. The Supreme Court, however, declared the authorities must invite website administrators and owners to trials concerning blocking of their web resources. The Russian authorities often block websites silently, without notifying their owners and the hope is that this judgment will change the unlawful practice.
The website Bitcoininfo.ru provided information about Bitcoin and other cryptocurrencies. Mr. Nikolay Tonkoshkorov was the website’s administrator.
The Prosecutor’s Office of the Vyborsk District in Saint Petersburg sought to block the website on the grounds that cryptocurrency was decentralized, could not be regulated, and those who used it could not be identified, which were in violation of the 2002 Federal Law on the Central Bank of the Russian Federation and the 2006 Federal Law on Information, Information Technologies and Protection of Information.
On July 18, 2016, the Vyborsk Regional Court of Saint Petersburg satisfied the Prosecutor’s request. A copy of the judgment was sent to Roskomnadzor, Russia’s telecommunications regulator, so that it could add the website to a unified registry of banned online materials. Mr. Tonkoshkurov was not notified of the legal process and found out about the blocking only after the fact.
Having found out that his website was blocked, Mr. Tonkoshkurov filed an appeal with Appellate Chamber of the Saint-Petersburg City Court. He argued that despite having been the website’s administrator, he was not notified of the legal process, in violation of his procedural rights. On February 13, 2017, the Appellate Court, however, refused to hear Mr. Tonkoshkurov’s appeal, on the grounds that he lacked standing, or a legal interest in the case.
Mr. Tonkoshkurov appealed again, seeking a positive judgment from the Cassation Chamber of Saint Petersburg’s City Court. On July 28, 2017, the Cassation Chamber rejected Mr. Tonkoshkurov’s appeal. He continued to appeal and on February 5, 2018, his case reached the Supreme Court, which agreed to hear his arguments.
The Supreme Court held that the Appellate Court of Saint Petersburg violated Mr. Tonkoshkurov’s procedural rights when it refused to admit him as a party to the case on the ground that he had no standing in the matter.
The Supreme Court explained that according to Article 12 of the 2006 Federal Law on Information, Information Technologies and Protection of Information a website owner is a person who has independent control over the website and its contents.
Further, article 15.1 of the Federal Law on Information mandated the Russian authorities to create a unified registry of banned domain names and websites. Once a website was added to the registry, its hosting provider had to notify the website owner within 24 hours of the fact. The website owner then had 24 hours to remove all unlawful content. If the website owner failed to remove the content, under the law, the hosting provider was required to block access to it in Russia.
According to the Russian domain name registry, Mr. Tonkoshurov was the administrator of Bitcoininfo.ru, which made him a party with an interest in this case. The Court added that any decision to limit access to a website, must be issued by courts of general jurisdiction, which oversee the enjoyment of human and civil rights.
Under Russian law, Roskomnadzor was tasked with identifying an individual or an entity to serve as a respondent in administrative cases, including those that dealt with website blocking. In pre-trial stages of the case, the judge selected to preside over the trial had to identify additional persons whose rights and interests would be affected by a respective court’s judgment. If such persons were identified, then the court had to notify them of the time and place of the trial. None of this occurred in this case.
Accordingly, the Appellate Court’s refusal to hear Mr. Tonkoshkurov’s appeal violated his procedural rights, and the Supreme Court ordered it to be overturned.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Supreme Court’s judgment expanded freedom of expression not solely because it upheld fair trial standards and the rights of an individual to argue against the blocking of his website, but also because it struck against the common practice of blocking websites without notification in Russia.
The 2011 Joint Declaration on Freedom of Expression on the Internet, signed by the UN Special Rapporteur on Freedom of Expression, the Organization for Security and Cooperation in Europe, and other regional and international bodies, reiterated that blocking of an entire website is an extreme measure, which can only be justified in accordance with international standards. One of such standards is the ability of a website owner, and in some cases a user, to challenge the blocking. The Supreme Court upheld this human rights standard in its judgment here.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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