ECHR: “Lugovoi’s law” on blocking does not contain a mechanism for protecting citizens from abuse

The Strasbourg court granted the complaint of a Syktyvkar activist about blocking his posts about an uncoordinated picket and stated that the Russian mechanism for extrajudicial blocking does not meet the requirements of the Convention on Human Rights.

On April 30, 2019, the European Court of Human Rights (ECtHR) ruled on the complaints of Syktyvkar activist Grigory Kablis about the refusal to approve the picket, as well as the out-of-court blocking of three posts on the 7x7 website and an account on the VKontakte social network. The court found that Russia violated Art. 10, 11 and 13 of the European Convention on Human Rights, protecting freedom of expression, freedom of assembly and the right to an effective remedy, and ordered her to pay Kablis 12.5 thousand euros in compensation for non-pecuniary damage and 2.5 thousand euros in legal costs account. In addition, the ECtHR recognized the very mechanism of blocking according to the so-called as inconsistent with the Convention. Lugovoy's law , fixed in Art. 15.3 of the Federal Law "On Information, Information Technologies and Information Protection".

In September 2015, Kablis filed a notice of a picket dedicated to the arrest of the head of the Komi Republic, Vyacheslav Gaiser, and published a message about it in a blog on 7x7. After the city administration refused to approve the picket, he published two more blog posts announcing the people's gathering without posters, as well as one post on VKontakte. After that, his social network account was blocked at the request of the Prosecutor General's Office, and then, under the threat of blocking, the 7x7 portal was forced to delete his blog posts .

The ECtHR held that the blocking of Kablis's account and posts constituted an interference by a state body with his right to freedom of expression, an integral part of which is the freedom to receive and impart information and ideas. Such interference must be based on the law, pursue a legitimate aim and be necessary in a democratic society, follows from the practice of the ECtHR.

The Syktyvkar City Court, in which Kablis appealed the blockings, called it to prevent violations of the law on the dissemination of information, while the Komi Supreme Court added that another goal was to prevent violations of public order. However, the ECHR considers that exceptions to the right to freedom of assembly should be interpreted as narrowly as possible, that is, they should be formulated as an exhaustive list and strictly defined. However, Art. Articles 10 and 11 of the Convention do not give the authorities the right to restrict these freedoms for the sake of maintaining public order. As for the argument about the goal of preventing violations of the law in the field of dissemination of information, the Russian side failed to explain to the ECHR which of the possible legitimate goals of the restrictions listed in Art. 10 of the Convention, this purpose was consistent. The Russian authorities have never claimed that the event announced by Kablis poses a threat to public safety (public safety) or can lead to riots and crimes (disorder or crime), and there was no talk of disclosing confidential information by him. Thus, the sole purpose of blocking was the application of the rules for holding public events, which, according to the ECtHR in its practice, should not be an end in itself. At the same time, taking into account the position of the Constitutional Court of Russia that the adopted procedure for coordinating events is aimed at ensuring the safety of their participants and all other persons, and the ban on calls for events that have not yet been agreed upon is aimed at preventing misleading citizens, the ECtHR suggested that that the legitimate aim of banning Kablis' fasts was to "protect the rights of others".

Preliminary (pre-trial) restrictions as such Art. 10 of the Convention does not prohibit. However, they must be carefully studied by the courts and applied only in exceptional circumstances, this is especially important when it comes to press materials and publications on topical issues, the decision of the Strasbourg court notes. In order for the courts to successfully enforce such restrictions, there must be clear rules for their application. However, in Art. 15.3 of the Federal Law "On Information" contains too broad wording regarding the ban on the dissemination of information about events held in violation of the law, the ECtHR believes. Neither the Supreme nor the Constitutional Courts have clarified this wording, and in fact it turns out that any, even the most insignificant, procedural violation in this area can serve as a reason for blocking posts on the network (in particular, in the case of Kablis, it was not established whether there was a real threat of unrest or any infringement on the rights of others). Moreover, the Prosecutor General's Office can block a website or a social network account containing illegal content, among other materials, without considering whether it is necessary to block the entire site or account as a whole, while the obligation to investigate this issue directly follows from the Convention and law enforcement practice of the ECtHR. According to the court, the General Prosecutor's Office's wide margin of appreciation in relation to such blockings makes it almost impossible for them to be judicially reviewed. In addition, taking into account such circumstances as the one-month period for considering complaints, the ban on inviting to participate in a rally before it is approved, and the short period of time allotted for approval, it cannot be guaranteed that a complaint about blocking information about an event will be considered before the day on which it appointed, and after this date, the review of the blocking decision loses all meaning. Thus, according to the ECtHR, Art. 15.3 of the Federal Law "On Information" does not contain the necessary safeguards against abuse.

Regarding the content published by Kablis, the ECtHR noted that only two of his four posts contained calls for participation in the public event he had planned. At the same time, it should be borne in mind that in relation to illegal, but peaceful assemblies, the authorities must demonstrate a certain level of tolerance. The reasons for blocking the other two posts are not at all clear; in addition, from the point of view of the ECtHR, they discussed issues of public interest, and such statements are subject to special protection. In addition, the mere fact of the illegality of the planned event did not yet give the authorities carte blanche to disregard the principle of proportionality of restrictions, and the courts had to consider the need for blocking in a democratic society, taking into account all the circumstances of the case. Namely, the following should be taken into account: firstly, the topic of the event was of public interest; secondly, the refusal to agree followed on formal grounds, which is contrary to the Convention; thirdly, Kablis's posts did not contain calls for violence or unrest; fourthly, about 50 people were planned to take part in the event, while there was no traffic at the venue - thus, there is no reason to believe that the event would require the intervention of the authorities to ensure security; sixth, Kablis openly wrote that the picket had not been agreed upon and thus did not mislead anyone. In other words, the procedural violation in this case was minor and could not lead to a violation of public safety or an infringement of the rights of others.

Thus, the ECtHR concluded that there was no urgent public need to block information in this case. There are no guarantees of protection against abuse of this kind in Russian legislation; the standards applied by the Russian courts in the Kablis case did not comply with the principles of Art. 10 of the Convention, and the courts did not provide relevant and sufficient grounds for interference with freedom of expression. Consequently, Russia violated Art. 10 of the Convention, says the decision of the ECtHR.

Sources

• CASE OF KABLIS v. RUSSIA (Applications nos. 48310/16 and 59663/17). JUDGMENT // ECHR. 2019. 30 April.