Skew in favor of censorship

The European Court of Human Rights has been concerned about the problem of mass sites of sites in Russia. In recent months, six complaints about locks have been communicated. This is significant, given that for the whole time that Russia is included in the Council of Europe, only 26 decisions on cases of freedom of expressing opinions have been adopted (Article 10 of the Convention on the Protection of Human Rights and Fundamental Freedoms).

Complaints from Russia cover the problem of locks from several sides at once. The case of the head of the Association of Internet publishers Vladimir Kharitonov is the blocking "For the Company". In this case, it is about restricting access to innocent sites, to which no one made any complaints. There is a good term in English "Collatel Blocking" (related locks). It is used by analogy with the words "Collataral Damage" ("accompanying damage"). This happens when the authorities are trying to eradicate some illegal content by the carpet method.

In the affairs of "Grani.ru" and "Kasparov.ru", as well as in the case of "Daily Journal", it was about extrajudicial blocking of the media sites, and in fact-about the forced termination of the media, which is actually possible only by court decision.

There is no doubt that the ultimate goal of the authorities was to destroy independent media

As it turned out in court, the authorities insisted on the full blocking of resources due to one illegal material. The requirements of the prosecutor’s office indicated that the sites contain a “significant part of illegal materials”, which supposedly gives them reason to limit access to resources as a whole. However, in the courts we managed to receive prints of specific publications from Roskomnadzor. Prosecutors and Roskomnadzor residents could not agree among themselves: whether it is about one material or the entire aggregate of information on the site. Of course, the position of prosecutors is more honest - it is clear that the authorities did not like the existence of such publications. And there is no doubt that the ultimate goal of the authorities was the destruction of independent media.

The Case "Roskomvoboda" is a blocking of the site of a non -profit organization on the basis of a court decision made on a fictitious basis - a ban on information about access to blocked resources and ensuring anonymity on the Internet (there is no such provision in the law). Moreover, a secret, without notifying the owner of the resource.

These four problems are related locks, blocking large resources due to one material, a ban on describing methods of bypassing locks and refusing to involve interested parties in the consideration of cases-those issues on which the Russian authorities are the most claims. It is very good that all of them interested the ECHR, so it can be counted that in the foreseeable perspective the Eurosud will consider the Russian Internet censorship in all key aspects.

Practice of the ECHR

The European Court is just beginning to be selected for consideration of cases related to the Internet as a whole and especially with regard to restricting access to information. This is a new story from all sides for Strasbourg. To date, there are only two well -known decisions of the ECHR on this subject, and both of complaints against Turkey.

In the first - "Ahmet Juldyrim against Turkey", which was made in 2012, it was a matter of concomitant blocking. On one of the sites, the Turkish authorities discovered materials that allegedly insulting Ataturk's memory. Such texts under local legislation are considered illegal. When it turned out that it was impossible to block only this site, the city court decided to completely limit access to the Google Site service, thousands of sites in this system have become inaccessible. Among them was the site of Mr. Yyldyrim, where he posted his scientific works and other materials. There was no illegal information on his website, but it, of course, was blocked. The situation was absolutely identical with the Kharitonov case. It is characteristic that the ECHR made a decision on the complaint of Yyldirima just on the very days on which Roskomnadzor in Russia blocked the Kharitonov website.

The second case is Jengiz and others against Turkey, which was made in 2016. It was about restricting access to YouTube due to several illegal materials. The ECHR said that it is unacceptable to block a popular service, where there are also unique materials that cannot be found anywhere else, due to the fact that some kind of separate, even illegal content appeared there. The court recognized the practice of such total locks illegal. In relation to Russia, nothing of the kind before was there. These six complaints are the first cases related to sites in our country.

European standards

The restrictions should be provided by the law, clearly formulated, unambiguously understandable and allowing citizens to anticipate the consequences of their actions

As you can see, the ECHR standards are still created in this matter. But now we can say that the general criteria for the justification of the restriction of the right to freedom of expression are applicable to the Internet. Human rights act on the network in the same way as in offline, and they are also applicable to the "triple test". The restrictions should be provided by law. And not just with some law there, but clearly formulated, unambiguously understandable and allowing citizens to anticipate the consequences of their actions. Russian legislation on sites blocking this criterion does not meet in any way. It is not up to an arbitrary interpretation and use.

The second criterion is a legitimate goal. In the case of “faces” and “Kasparov”, as well as in the affairs of the “weekly magazine” and “Roskomvoboda”, the legitimate goal was obviously absent because they were blocked in order to limit the criticism of the authorities or the dissemination of information about ways to circumvent blocking. This is an unlawful, illegal goal.

The authorities should look for other ways, especially since they exist

Finally, the third criterion is the proportionality and adequacy of the measures used. In Kharitonov, the Russian authorities used the blocking in order to limit access to allegedly to drug propaganda. This is also a very dubious thesis, but suppose it is necessary to protect the health of the population. Be that as it may, the measures that the authorities take to achieve a legitimate goal should not be excessive. You can not block hundreds and thousands of resources in order to remove several materials from the Internet. So, the authorities should look for other ways, especially since they exist. So, in addition to blocking the network addresses, blocking individual pages is quite technically implemented. These technologies have long existed, but as a rule, their implementation is much more expensive. In the end, they, even if they are used, these costs are shifted to users, which leads to a rise in the cost of Internet access.

There is another nuance. More and more sites use access to HTTPS, that is, an encrypted protocol, which, in particular, does not allow to limit access to individual pages from the outside. For example, the most popular services - Facebook, Twitter, YouTube, Google - are just used by HTTPS, and this is almost a security standard. Thus, only Google and YouTube can delete information on Google and YouTube or limit access on a geographical basis. It turns out that the Russian authorities need to either agree with the service, or block access to it entirely. But it’s completely incomprehensible to me why this problem is transferred to conscientious users and site owners.

Another important point associated with the standards of the ECHR. When locks are used, it must necessarily be able to appeal the decision about it. In fact, in Russia there is no such possibility, at least for owners of sites who have been interpreted blocking, and most of them. They are not notified of the decision to limit access to the resource or the upcoming trial regarding illegal content. And they will even learn about the restriction of access after their site is already blocked.

Kharitonov’s case showed that it is pointless - from the point of view of protecting rights - to go to the Russian court, which will say that your rights are not violated, because Roskomnadzor acted within the framework of his authority, as the Tagan court of Moscow did. Or he will send you to sue an American or other foreign jurisdiction, as the Constitutional Court said, where Kharitonov also appealed. The possibility of effective judicial appeal of violated rights is a very important guarantee of protection, and it must be provided.

Users prefer moving to other IP addresses, departure to other jurisdictions, using the means of bypassing blocking

The question arises, why did the ECHR have not paid close attention to this topic until today? Apparently, there are few complaints about illegal locks. Users prefer other mechanisms for protection against arbitrariness-moving to other IP addresses, leaving to other jurisdictions, the use of circulations bypassing. All this - evasion, bypass, disguise - historically characteristic of the Internet and its users. Relatively speaking, it is much easier to move from VKontakte on Facebook or from the .ru zone to the .io zone, what to try to sue the Russian authorities in the Russian court. The ECHR is still far away, it must be able to and it takes time.

The scale of the phenomenon

Meanwhile, the scale of the problem is colossal. According to Roskomsvoboda, over 8 million sites fell under the blow for the entire existence of extra -court blocks in Russia. And more than 4 million sites continue to be inaccessible to Russian users. Interestingly, the vast majority - up to 97% - are blocked at all without any legal decision. These are the very related locks that users, fortunately, quite successfully learned to bypass.

In cases of blocking Roskomnadzor, because of the tactics and positions “in a deaf defense” he chosen, he constantly and forced to sit in a puddle. It is enough to recall their justification of the blocking of the Navalny blog in the "living magazine". They wrote that access to LJ is limited due to the fact that Navalny violates the house arrest.

Indeed, at that time Navalny was under house arrest with the ban on using the Internet, and materials continued to appear on the blog. And Roskomnadzor did not find anything better than publish the first thing that came to mind. Of course, there is no such basis in any law. Or at one time invented by the head of Roskomnadzor Zharov, an amazing justification for the accompanying blocks: “Our study showed that a considerable number of resources located on the same hosting as malicious sites, but to which there were no formal claims, also distributed illegal information,” after which he suggested the owners of “legal” sites to change hosting.

Non -governmental coalition

In the case of Kharitonov, the ECHR allowed a number of organizations as third parties, whose members are the most respected and authoritative in the human rights community in the Internet. Information that the ECHR Foundation of Electronic Branks, "Article 19", Access Now and RoskomSvoboda will be extremely important will be extremely important. I believe that they have joined the site of sites in Russia, since it was possible to influence practice now, to participate in the creation of standards that will be assigned to the European Council for years to come. This trial will undoubtedly need help. So far, this topic is new and there are a lot of different opinions.

European legislation on blocking is heterogeneous, in different countries everything is decided in different ways

The ECHR in the case of Yildirima noted that European legislation on locks is heterogeneous, and these issues are resolved differently in different countries. By the way, I believe that this is why the President of the section noted that the Kharitonov case is the potentially so -called Leading Case - a “leading business”. This is a matter, which refers to the first identified systemic problem, will probably require adoption of general measures, because Russian legislation is clearly skewed in favor of censorship and police supervision and contains practically no guarantees of freedom of speech.

The reaction of the authorities

In the case of Kharitonov, the Russian government has already provided its objections. The authorities refer to the fact that Roskomnadzor acted within the framework of its authority, and the blocking pursued a legal goal - to protect children from drug propaganda. The Ministry of Justice states that the American hosting provider is to blame for Kharitonov’s problems, which should be made claims, and the IP address sites are blocked around the world, and in general, what is the worse than Great Britain? A few years ago, when this story was just beginning, the head of Roskomnadzor, Alexander Zharov, claimed that the data of a certain “study” indicate that "a considerable number of resources located on the same hosting as malicious sites, but to which there were no formal claims, also extended illegal information." That is: we blocked and we will block, the forest is chopped - chips fly.

The authorities always refer to the protection of children and the fight against extremism

In the case of Kasparov.ru, Grani.ru, Daily Journal and Roskomsvoboda, the government position should be presented until January 15, 2018, but there is hardly something new there. The authorities always refer to the protection of children and the fight against extremism. Wide extra-court blocking of Internet sites on any convenient grounds is a political issue, there can be no concessions here.

Prospects

It cannot be said that the process of blocking the media after Kasparov, Grani, Hedgehog and Blog Navalny (he is in fact also media) in Russia has become a less urgent problem. Now a number of Ukrainian and other media are blocked in Russia - Ukrinform, Crimea. Realii, New Region. But these cases, which are now being studied by the ECHR, seem to have been made by Roskomnadzor to at least specify their requirements. There is no longer on such a scale of that open prosecutorial and censorship lawlessness when they could allow themselves to write: "You have something forbidden on your site-find yourself and delete it yourself, and then we will see if you guessed or not and, maybe, we will unlock it." Claims still look ridiculous, but now the censors at least began to indicate the addresses of the pages. This enables the owners of sites to maneuver, delete or edit information. At least it is clear what can be done so as not to bring to lock or get out of it.

In the case of Kasparov.ru and “faces” it was impossible to do this and it would be necessary to completely delete all the content for the entire existence of sites.

By the way, another very important problem is connected with this - the availability of archives. The ECHR has a decision in the case "Times Newspapers LTD against the UK", which notes the importance of maintaining the media online archives available for the public. But in fact, the prosecutor’s office with Roskomnadzor demanded to remove the media archives in a decade and a half, and this is a separate and very serious threat to the freedom of expression.

Damir Gainutdinov - legal analyst of the international human rights group "Agora", candidate of legal sciences