Content Regulation / Censorship, Hate Speech, National Security
Government of Kazakhstan v. Respublika
Closed Expands Expression
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The European Court of Human Rights (ECtHR) ruled that the Russian authorities’ decision to block the IP address of an offending website, which in turn resulted in the blocking of the applicant’s 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 applicant’s website availed the hosting services of a U.S.-based company that further hosted multiple other websites with the same IP address; the applicant, in effect, shared their IP address with other websites, though with a different domain name. In December 2012, the government authorities blocked access to an IP address that contained offending material, however, the applicant also shared the same IP address. Resultantly, access to the applicant’s website was blocked, which the applicant only came to know about after the blocking order was passed and implemented. Upon finding out about the order, the applicant appealed against it on the ground that they were unconnected to the offending website and that their legitimate content is being harmed, however, all their attempts to appeal and complaints were rejected. The ECtHR held that the interference from the application of the procedural law had arbitrary and excessive effects; 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 ineffective; the appellate court did not consider the substance of the applicant’s grievances.
Mr. Vladimir Vladimirovich Kharitonov (hereinafter the applicant) is the owner and administrator of the website Electronic Publishing News (http://www.digital-books.ru), a website founded in 2008, which features a compilation of news, articles, and reviews about electronic publishing. The concerned website is hosted by a U.S.-based company, DreamHost, which hosts multiple other websites with the same numerical network address (“Internet protocol or IP address”), though with different domain names.
In late December 2012, the applicant via reports from their website’s users discovered that access to their website is blocked by the internet service providers, citing “a decision by the competent Russian authority”. Upon investigation, the applicant discovered that their website was black-listed by the domestic telecoms regulator and that the IP address of their website has been added to the blocking list following a 19th December 2012-dated decision of the Federal Drug Control Service. However, the decision to block was intended for another website (which contained cannabis-themed folk stories, “The Rastaman Tales”) with the same IP address as the applicant’s website.
In June 2013, the Taganskiy District Court rejected the applicant’s complaint, observing that the telecoms regulator had correctly acted and within competence to protect children from harmful information relating to the use of drugs; the District Court did not assess the impact of the measure on the applicant’s website.
In September 2013, the applicant appealed to the Moscow City Court, relying on the Court’s findings in the case of Ahmet Yıldırım v. Turkey (no. 3111/10, ECHR 2012) which addressed the indiscriminate blocking of hosting services. The City Court rejected the complaint summarily, observing that the proportionality principle has been respected as the telecoms regulator had lawfully blocked access to prohibited content; and did not address the applicant’s website’s specific concern.
The primary issues before the ECtHR were: (i) whether the Russian authorities’ decision to block the IP address of an offending website which in turn resulted in the blocking of the applicant’s 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.
Regarding the alleged violation of Article 10
The applicant, while accepting that the blocking of a website with information about the production and use of drugs pursued a legitimate aim, maintained that the scope and manner of interference were disproportionate to the aim. The intended website content – “The Rastaman Tales” – was a crowd-sourced collection of comic and folk stories about cannabis, with an adult audience that could not be compared to a practical guide on the manufacture or use of drugs. The story, as the applicant argued, had been in the public domain and available in various other formats (like book copies and other online websites); the decision to block one of the sources of the stories failed to achieve the aim, in turn causing substantial and unjustified damage to the applicant’s right to freedom to impart information.
Further, the applicant argued that their website was “a perishable commodity” that would lose value and interest with delayed publication. Migrating to a different website would have harmed the considerable and steady readership, the four-year worth of archived publications, and would have required an investment of considerable time and resources. The applicant also argued that defects in the Russian internet law would have made any alternative platform equally susceptible to wholesale blocking for reasons unconnected and beyond the applicant’s control. Alongside public notices by the authorities to block websites like Facebook and Google, over 3,900,000 websites that did not contain any illegal content but shared ID addresses with other websites that did were already blocked, as of October 2017.
Further, they argued that the blocking decision was not produced before a court by the government or even otherwise, and the Court had rejected the applicant’s disclosure in that respect itself. The applicant maintained that they were not connected, in any way, to the offending website and could have been aware of any steps they might have taken to protect their rights; they were at the mercy of the authorities, the offending, and the hosting service. Lastly, the applicant also contended that Russian law did not require the telecoms regulator to assess the impact of its blocking decision.
The Government argued that the blocking of the offending website pursued an important policy objective. The telecoms regulator had first notified the hosting service provider that the website contained offending content; only upon failure of the provider to remove the offending content did it add the website’s IP address to the blocking list, Integrated Register. The regulator was strictly complying with the relevant law, subsection 9 of section 15.1 of the Information Act, which further did not require it to notify all owners of all websites with similar IP addresses as the information can be accessed online on the Integrated Register’s website.
The Government further distinguished the instant case from Ahmet Yıldırım v. Turkey (no. 3111/10, ECHR 2012), which the applicant had relied on. It argued that in the cited case, the Turkish criminal court did not inform Google before blocking its hosting services and that the State telecoms directorate had directly applied for the blocking order. Whereas in the instant case, the applicant did not proceed against the ISP or request the court to assess whether the blocking was the only method available for restricting access to the offending website. The Government also argued that Turkey had banned thousands of websites including YouTube GeoCities and Dailymotion; Russia has not.
Citing another case, Akdeniz v. Turkey (dec.), no. 20877/10, 11 March 2014, it further maintained that the applicant is not a victim of the alleged violation, in the same way, that a Turkish user of a music-streaming website had been merely indirectly affected by the blocking of that website. The applicant was not estopped from publishing information on other websites, platforms, and resources. Access to the applicant’s website was for a short period of time and the applicant had not demonstrated whether the owner of the offending owner had challenged the blocking decision.
Lastly, the Government also cited provisions relating to the suppression of child pornography in other countries such as the U.K., France, Germany, China, and the United States to maintain that all countries provided some form of filtering of online content; it also dismissed submissions of third-party interveners as irrelevant.
The third-party interveners reiterated that the “assessment of proportionality of restrictions on freedom of expression, including website blocking, should include both substantive (what is blocked) and procedural (how it is blocked) elements” [para. 29]. Wholesale website blocking is an extreme and disproportionate measure and is analogous to banning a newspaper or television station, and was incapable of distinguishing between lawful and unlawful content” [para. 30]. Such orders are to be narrowly targeted and least intrusive, taking “into consideration the overall effectiveness of the measure and the risks of “over-blocking” other lawful content, including by reference to the technologies available to comply with the order” [para. 30]. Citing European high courts’ judgments, they also submitted that “blocking websites by IP address carried a greater risk of undesirable effects on third parties and of “over-blocking” [para. 30].
It was also highlighted that “Russia’s implementation of website blocking led to collateral website blocking on a massive scale and lacked adequate safeguards against abuse. As of 28 June 2017, 6,522,629 Internet resources had been blocked in Russia, of which 6,335,850 – or 97% – had been blocked collaterally, that is to say, without legal justification. At various times, due to collateral blocking, Russian users were not able to access widely used Internet services such as Google, Wikipedia, Web Archive, Reddit, Amazon Web Services, and Disney. In addition, the Russian blocking system had vulnerabilities that facilitated over-blocking and abuse, such as the possibility to change unilaterally the IP address of a blocked website to the IP address of any other website, rendering it immediately unavailable for Russian users” [para. 31]. If it were potential that internet service providers would be blocking IP addresses because of lower costs, the State must bear a higher burden in order to create conditions for a human-rights-compliant manner of blocking content.
Consistent with the international standard, the law must provide for following procedural standards: “(i) blocking should be ordered by a court or an independent adjudicatory body; (ii) ISPs and other interested parties should be given the opportunity to intervene in proceedings in which a blocking order is sought; (iii) users and victims of collateral blocking should have the right to challenge, after the fact, the blocking order; (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” [para. 30].
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. It also reiterated that measures blocking access to websites tend to impact the accessibility of the Internet and so engage the responsibility of the State under Article 10.
The court noted several factual considerations in the instance case, that the applicant was oblivious to the IP address blocking; the applicant did not have any knowledge or control over when or if the blocking measure would be lifted; the applicant was unable to share their news content with their readership; the entire readership was prevented from accessing the entire website content. The Court noted that the same amounted to an “interference by a public authority” with the right to receive and impart information; Article 10 guarantees not only the right to impart information but also the right of the public to receive it. 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”, impugned interference must have a statutory basis in domestic law, and should be accessible, foreseeable, and sufficiently clear in its scope.
Further, the Court highlighted that the relevant domestic law, the statutory basis for the interference, section 15.1 of the Information Act, allows the authorities to target an entire website without distinguishing between legal and illegal content. The relevant law defines the categories of prohibited content that is susceptible to being blocked and lays down a step-by-step procedure for implementing a blocking order. The Court further reiterated that wholesale blocking of websites is an extreme measure comparable to “banning a newspaper or television station” [para. 38] and that such legal provisions that confer broad discretion to the executive carry a risk of arbitrary and excessive content blocking.
The Court also noted that the applicant did not have an affiliation to the offending website or was responsible for the offending content; the applicant did not have any content on their website falling within the scope of the definition of prohibited content under section 15.1 of the Information Act. Considering the same, the court noted that the interference in the issue “could not have been grounded on the provisions that was supposed to have formed its legal basis” [para. 39].
Further, the Court noted that the impugned blocking was an automatic consequence of the telecoms regulator’s decision to add the IP address of the offending website to the Integrated Register. Importantly, the Court noted that its scrutiny is not limited to establishing whether the State agency acted in accordance with the letter of domestic law, but is also concerned with ascertaining “whether the quality of the law in question enabled the applicant to regulate his conduct and protected him against arbitrary interference” [para. 40].
The Court observed that section 15.1 of the Information Act conferred extensive power on the telecoms regulator for carrying out the implementation of blocking orders with respect to a specific website: it can place the website on the Integrated Register; ask the website owner and its hosting service provider to take down the offending content; add IP addresses to the Integrated Register on failure to comply or respond. However, as the Court noted, the law did not require the regulator to determine whether the address was used by multiple entities or establish the need for blocking IP addresses. In effect, the manner of proceeding could and did have a practical effect of extending the scope of the blocking order far beyond the illegal content which had been originally targeted; the Court cites Ahmet Yıldırım v. Turkey (no. 3111/10, ECHR 2012) specifically to maintain the same. Noting the applicant and third-party intervener’s submissions, it also noted that millions of websites have remained blocked in Russia for the sole reason that they shared an IP address with some other websites featuring illegal content.
Furthermore, “shared hosting is a common and accessible hosting arrangement for small to medium-sized websites” [para. 42], where the owners of individual websites like the applicant may be unaware of the contents of co-hosted websites. The hosting company, existing beyond the Russian jurisdiction, is further not bound by Russian authorities’ determination of illegal content. Accordingly, owners such as the applicant would inevitably suffer from the risk no matter which shared-hosting platform solution they opted for, where the owners of other websites and other hosting service providers would not pay heed to take-down orders. The applicant had to suffer on account of an incidental connection at the infrastructure level; the Court determined that the law is accordingly not sufficiently foreseeable in its effects and does not afford the applicant opportunity to regulate their conduct.
Moving on to the issue of the availability of safeguards against abuse, the Court reiterated that “exercise of powers to interfere with the right to impart information must be clearly circumscribed to minimise the impact of such measures on the accessibility of the Internet” [para. 43]. In the instance case, the original determination and the telecoms regulator’s implementing orders were made without any advance notice to parties whose rights and interests might be affected. Additionally, neither were the measures sanctioned by courts or other independent adjudicatory bodies where such parties could have heard nor was there any legal requirement for impact assessment of the blocking measures. As the Government admitted, there was no legal requirement to ascertain the potential collateral effects of blocking, despite the availability of common Internet tools (such as the “reverse IP address lookup”).
Regarding the transparency of blocking measures, the Court noted that though the telecoms regulator’s website provides a list of blocked websites, it does not give access to the text of the blocking decision or any indication of the reasons for the measure or information about avenues of appeal. The domestic law also does not require third-party notification of blocking decisions in cases of any potential collateral effect of blocking orders; the applicant could not access the decision, not even during the court processing where the courts had rejected disclosure of the decision.
Additionally, 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. 45]. 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. 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. 45].
The Court reiterated that “when exceptional circumstances justify the blocking of illegal content, a State agency making the blocking order must ensure that the measure strictly targets the illegal content and has no arbitrary or excessive effects, irrespective of the manner of its implementation” [para. 46]. The Court concluded that the interference did not satisfy the foreseeability requirement under Article 10 and did not afford the applicant an adequate degree of protection.
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 applicant argued that Russia had more than 3500 internet service providers in 83 regions and lodging a separate claim against them was not an effective remedy. They also highlighted that the law gave an option to internet service providers to either block domain names or IP addresses. Also, the Russian courts failed to carry out a proportionality assessment of the blocking order.
The Government contended that the applicant could have proceeded against the internet service provider or the hosting service providers whose failure had resulted in the alleged violation.
They submitted that most European jurisdictions allowed ISPs to challenge blocking orders addressed to them and that a few States explicitly provided victims of collateral blocking with a remedy. They also 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 collaterally blocked websites, who could be identified by performing a “reverse IP address lookup” and creating a possibility to challenge a blocking order before it was implemented. Ex-post remedies would enable such owners to lodge appeals against the blocking order, limit the duration of blocking orders and ensure that instances of over-blocking were subsequently monitored.
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 could approach the court of law to appeal against the blocking order, the domestic courts failed to consider the substance of their grievance. They failed to examine the lawfulness and the proportionality of the impact of the blocking orders on the applicant’s website.
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.
Joint concurring opinion
Judges Lemmens, Dedov, and Poláčková wrote a joint concurring opinion, noting specifically that the interference was not “prescribed by law” not because it lacked foreseeability, but because the interference had no basis in domestic law. In their opinion, they believe that section 15.1, subsection 5(1), defines in a sufficiently precise way the categories of information that are prohibited and to which therefore access can be blocked and do not find that this provision gives “unfettered discretion” to the executive. The manner of implementation need not be regulated in detail by the legislature, especially when considering measures of a technical nature; in fact, doing so would run the risk of over-regulation. It was within the telecoms regulator’s discretion to choose the manner of implementation, and it was for them to ensure that whatever method they chose remained within the limits of what had been requested by the Federal Drug Control Service. The telecoms regulator implemented the blocking request made by the Federal Drug Control Service in a way that went beyond what was permissible under section 15.1, subsection 5(1), of the Information Act. The blocking measure did not have a basis in law.
The telecoms regulator is responsible for the violation of the applicant’s rights, and so are the domestic courts for their failure to recognize the unlawful nature of the regulator’s actions, their failure to pay heed to the criteria under the ECHR, and their failure to restore lawfulness. According to the concurring judges, the Information Act is not inconsistent with the ECHR; there are several states of the Council of Europe with similar laws. In the instance case, the application of the law is the main issue.
It would be sufficient to change the administrative practice of the telecoms regulator, alongside domestic judicial practice; the legislature, in their opinion, need not intervene. However, considering that the main judgment concludes that it does not meet the foreseeability requirement under Article 10 of the ECHR, full execution of the judgment will require the legislature to intervene and amend the Information Act. In the meanwhile, the telecoms regulator and domestic courts must change their own practice and need not wait for the amendment.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Vladimir Kharitonov 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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