The ECHR has declared illegal a number of cases of Internet blocking in Russia

On June 23, 2020, the European Court of Human Rights published decisions on several complaints about the blocking of online materials in Russia.

"LLC "Flavus" and others against Russia"

In this case, the ECtHR combined the complaints of Flavus LLC (publisher of the Grani.ru portal), Garry Kasparov (publisher of the Kasparov.ru portal) and Mediafocus LLC (publisher of Ezhednevny Zhurnal, ej.ru). All three sites were blocked extrajudicially at the request of the Prosecutor General's Office (i.e., according to the " Lugovoy law "), which was drawn up on March 13, 2014.

Roskomnadzor, in a notice of blocking, indicated that the sites contained calls for extremist activity. But, as it turned out later, the prosecutor's office explained the blocking by the fact that the sites had a "single thematic focus" and published information about public events held in violation of order, tendentiously covering the actions of their participants. In particular, from the point of view of the department, the Daily Journal published materials about the Bolotnaya case, from which it followed that illegal protests are an acceptable and necessary form of expression of civic position, and which actually constituted calls for participation in such events. "Grani.ru" in one of the articles about "Strategy-6" actually presented illegal actions - uncoordinated actions - as permissible and called for participation in similar events, the Prosecutor General's Office claimed. The reason for the claims against the site "Kasparov.ru" was the material on the nationalization of Ukrainian property in Crimea, published before the referendum, which was accompanied by a photograph of a poster with the image of an armed man and the caption "Crimean partisans" and the inscription "Crimea, wake up! Occupants and their minions impudently steal your money and mutilate your cities. Don't be silent! Don't give up!"

The district courts dismissed the website publishers' complaints about the blocking, stating that an employee of the Prosecutor General's Office drew up a demand to restrict access to them within the scope of his authority, Roskomnadzor fulfilled its obligations by providing the necessary information about the pages with information recognized as illegal, and the blocking did not affect the rights and freedoms of the applicants . The Moscow City Court upheld the decisions of the lower courts. Kasparov.ru replaced the illustration that caused claims by the Prosecutor General's Office and asked Roskomnadzor to restore access to the site, but did not receive a response. Commenting on this circumstance for the ECHR, the Russian side of the proceedings stated that, according to the results of the audit, the site still contains illegal information.

In examining the question of whether the state interference with the applicants' right to freedom of speech was based on law, the ECtHR noted several aspects.

Firstly, the demand of the Prosecutor General's Office referred to calls for uncoordinated mass events, and the notice from Roskomnadzor referred to calls for extremism. Moreover, in violation of Art. 15.3 of the federal law "On Information, Information Technologies and Information Protection" Roskomnadzor did not indicate the exact addresses of pages with illegal content, as a result of which it was impossible to identify and eliminate the violation. From the point of view of the ECtHR, such actions of the Russian authorities were in themselves unreasonable and did not allow the applicants to make an informed choice between deleting or changing the content and challenging the Prosecutor General's Office's demand.

Secondly, the ECHR pointed out that Ezhednevny Zhurnal and Grani.ru were blocked for approving protest actions in support of the defendants in the Bolotnaya case, which the Prosecutor General's Office regarded as calls to participate in them. However, as the Strasbourg court established earlier, when considering the case " Kablis v. Russia ", written in Art. 15.3 of the Federal Law "On Information", the wording about calls for participation in "public events held in violation of the established procedure" allows for too broad interpretation, allowing the Prosecutor General's Office to block information related to any violations of the procedure for holding events, including minor, non-dangerous, incapable of creating threats disorderly conduct and threats to the rights of others. Moreover, this wording allows you to block content that does not contain calls at all.

Thirdly, it was about the Bolotny case, which for several years was an issue of special public interest in Russia, and led, among other things, to new prosecutions for participation in uncoordinated actions, which, like the sentences of a number of persons involved in the Bolotny case, were recognized by the ECtHR as unfounded. Ezhednevny Zhurnal and Grani.ru informed readers about developments and new persecutions, fulfilling their journalistic duty, including the presentation of different points of view, not excluding critical ones in relation to the official one, the ECtHR believes. At the same time, the Prosecutor General's Office did not indicate in the demand which parts of their publications about the rallies it considers to contain illegal information. From the point of view of the ECHR, public support for the defendants in the Bolotnaya case and those who demonstrated solidarity with them cannot be regarded as a call for uncoordinated actions. Emphasizing that freedom of expression on issues of public importance needs special protection, the ECHR stated that in this case the Prosecutor General's Office resorted to an arbitrary and knowingly unreasonable interpretation of the publications.

Fourthly, regarding the poster with an inscription about Crimea, which was published by the Kasparov.ru website, the Prosecutor General's Office did not indicate what kind of illegal actions it contained, what made them illegal, and in general, on what basis did the Russian prosecutor's office evaluate the actions of Russian non-citizens outside the Russian jurisdiction. In any case, the general term "illegal acts" did not refer to any of the three listed in Art. 15.3 categories of prohibited content, and, consequently, the requirement of the Prosecutor General's Office in relation to the Kasparov.ru website had no legal basis at all, the ECtHR decided.

While recognizing the interference with the applicants' freedom of expression in the form of content blocking as unlawful, the ECtHR also considered whether the blocking of websites had a legitimate aim and was necessary in a democratic society. From the point of view of the Strasbourg Court, the blocking of an entire website is an extreme measure, similar to a ban on the printing of a newspaper or the broadcast of a TV channel. Such blocking ignores the distinction between legal and illegal information on the site and restricts access to information that has not been recognized as illegal, the ECtHR stressed. Even in exceptional circumstances, when the state considers it necessary to block content, the termination of access to the entire site must have a separate justification, different from the justification for blocking individual materials and based on the criteria of Art. 10 of the European Convention on Human Rights, protecting freedom of expression. From the point of view of the ECHR, the blocking of legal content cannot be an automatic consequence of a more specific blocking (as Art. 15.3 of the Federal Law "On Information" allows), and any blocking of legal content or sites that was a side effect of blocking illegal materials should be considered as arbitrary interference in the rights of site owners. In the case of blocking three of the applicants' websites, the Russian side of the proceedings did not provide a justification for blocking the websites in their entirety, did not explain what legitimate aim they were pursuing and what urgent public need the Russian authorities were guided by when blocking these websites. As a result, the Strasbourg Court concluded that the legitimate aim of the blocking was not pursued. In addition, the statement of the site owners that the real goal was to suppress access to opposition publications caused serious concern to the ECtHR.

Separately, the ECtHR considered the issue of protection mechanisms against arbitrary persecution under Art. 15.3 of the Law "On Information". From his point of view, Russian law does not provide owners of online media with any procedural guarantees of this kind. It does not provide for the participation of site owners in the blocking procedure, while the requirement of the Prosecutor General's Office and the notification of Roskomnadzor are issued without prior warning to potentially interested parties. The legislation does not provide for a preliminary assessment of the consequences of blocking, does not justify the need for urgent blocking without providing interested persons with the opportunity to remove content or appeal the blocking decision. Finally, these blockings are simply not sanctioned by a court or similar independent body, where interested parties could express their attitude towards them. The law also does not oblige the authorities to justify the necessity and proportionality of the interference with freedom of expression on the Internet, nor to consider whether the desired result can be achieved by more lenient means. The authorities may not ensure that the blocking will only affect illegal content and will not lead to arbitrary and excessive consequences, including the blocking of an entire site. The law does not oblige the site owners to transfer the requirements of the Prosecutor General's Office to block them, as a result of which, in the case under consideration, the owners learned about the grounds for blocking only at the trial.

Finally, as the ECHR has already pointed out in the decision in the Kablis case, the discretion of the Prosecutor General's Office under Art. 15.3 of the Law "On Information" is such that it is very difficult, if not impossible, to appeal the decisions of the agency in court. Judges, considering such complaints, do not weigh the interests of the parties, including not assessing the need to block sites entirely, the ECtHR believes. From his point of view, this is a consequence of the failure of the courts to comply with the decision of the plenum of the Supreme Court of the Russian Federation No. 21 of June 27, 2013, according to which the requirements of the European Convention on Human Rights as interpreted by the ECtHR should be taken into account. In the case under consideration, the courts limited themselves to establishing the fact that the Prosecutor General’s Office and Roskomnadzor acted within their powers, however, guided by the criteria based on the Convention, they had to take into account the fact that the blocking affected large amounts of information, significantly restricted the rights of Internet users and had noticeable side effects.

The ECtHR concluded that the interference with the applicants' freedom of expression as a result of the application of Art. 15.3 of the Law "On Information" was excessive and arbitrary, and Russian legislation did not provide them with adequate protection against abuse, and also that the blocking of sites did not have the justification provided for in Part 2 of Art. 10 of the Convention did not pursue a legitimate aim and was not necessary in a democratic society.

The court decided that Russia violated Art. 10 of the Convention guaranteeing the right to freedom of expression, and Art. 13, ensuring the right to an effective remedy, and ordered to pay all applicants 10,000 euros in respect of non-pecuniary damage, as well as 1,000 euros to the publisher of the Daily Journal in respect of legal costs.

After the publication of this decision of the ECHR, the international human rights group "Agora" turned to Prosecutor General Igor Krasnov with a proposal to immediately stop blocking the websites of the publications "Grani.ru", "Kasparov.ru" and "Ezhednevny Zhurnal".

"Bulgakov vs. Russia"

The complaint was filed by Evgeny Bulgakov, owner of the Russian Civilization Worldview website (razumei.ru). In November 2013, Bulgakov discovered that his ISP had blocked the site based on the decision of the Kirovsky District Court of Rostov-on-Don dated April 3, 2012. It was accepted at the suit of the regional prosecutor, who discovered materials on several sites that were previously recognized as extremist, and asked the court to oblige Beeline to block "by adding rules for filtering the IP addresses of these sites on the border router." Razumei.ru was also among the blocked sites, where the prosecutor's office found the banned book by Valery Emelyanov "Desionization". As soon as the site owner found out about the decision, he removed the book from the site and, through the court, demanded that the provider restore access to the site. Bulgakov won the lawsuit in the Savelovsky District Court of Moscow, but the Moscow City Court did not take his side, pointing out that the original decision of the Rostov court concerned blocking an IP address, not a specific page. In parallel, Bulgakov restored the deadline for appealing the decision of the Rostov court and filed an appeal, but the regional court rejected it, stating that the decision could not be canceled on the grounds that Bulgakov did not participate in the process, since the defendant in the lawsuit was not he, but the provider; the court also said that it had no evidence that the book had been removed from the site.

In itself, the decision to block extremist materials was recognized by the ECHR as based on the law. However, the Strasbourg Court had questions about the method of blocking by IP, chosen, perhaps due to the court's lack of proper technical qualifications. Blocking the entire site is not only considered an extreme measure (see above), but also had no legal basis in this case: blocking under Art. 10 of the Law "On Information" can only be subject to materials, distribution should be administrative or criminal liability, and not sites in general.

The procedure for the participation of the site owner in the consideration of the blocking claim was not provided for by law, and therefore he was not involved in the process in time. However, the ECtHR believes that the involvement of the provider as a defendant deprived the process of competition, since the provider performs only a technical function of providing access to millions of sites, is not aware of their content in detail and does not have the legal resources to vigorously defend each specific site. At the same time, usually such decisions ultimately affect all providers in the country, the ECtHR noted.

Considering Bulgakov's complaints about the blocking, the Russian courts did not apply the decision of the plenum of the Supreme Court of the Russian Federation No. 21 of June 27, 2013, according to which the requirements of the European Convention on Human Rights as interpreted by the ECtHR should be taken into account. The courts had to find out whether the desired result could be achieved with more lenient measures, whether the blocking only affected illegal content, and whether it would entail unlawful and excessively serious consequences. In addition, the decisions of the national courts were not transparent, since the law "On Information" does not provide for notifying the site owner of the decision.

Since there were no legal grounds to decide to block the applicant’s entire website, the refusals of the courts to unblock it, despite the fact that the Savelovsky court had established that the material had been removed, were all the more illegal, the ECtHR added.

Thus, according to the ECHR, interference with the applicant's right to freedom of expression by blocking the site under Art. 10 of the Law "On Information" had excessive and arbitrary effects, and Russian law did not provide him with sufficient protection against abuse. Consequently, the interference with the applicant's right was not based on law, the ECtHR declared, recognizing a violation of Art. 10 and 13 of the Convention and awarding Bulgakov 10,000 euros in compensation for non-pecuniary damage and 91 euros in legal costs.

"Engels vs. Russia"

Gregory (Grigory) Engels, a member of the Pirate Party of Germany and the owner of the rublacklist.net domain, appealed against the blocking of a page posted on the Roskomsvoboda website, which is dedicated to ways to bypass blocking. The decision to block this page was made in 2015 by the Anapa City Court, satisfying the claim of the prosecutor, who argued that thanks to the information on this page, one could gain access to extremist materials. The administration of the Roskomsvoboda project removed the page and filed an appeal, pointing out that the Roskomsvoboda website contains the contact details of the owners of the site and that the blocking issue in their absence violated the principle of fair trial. On September 29 of the same year, the Krasnodar Regional Court rejected the complaint without analyzing the arguments of Roskomsvoboda in the text of the judicial act.

The ECHR noted that the decision to block was made on the basis of paragraph 2 of part 5 of Art. 15.1 of the Federal Law "On Information", according to which the basis for blocking may be "a court decision on recognizing information disseminated via the Internet as information whose distribution is prohibited in the Russian Federation." The Strasbourg Court called this wording unique and one of a kind in breadth. It does not provide any guidance as to the nature or categories of content that may be blocked; it does not contain references to other laws, by-laws and other normative acts. According to the ECtHR, such a vaguely formulated legal norm does not meet the criterion of foreseeability. Site owners, such as the applicant, cannot regulate their behavior in accordance with it, because they do not know in advance what content can be blocked and whether the entire site can be blocked.

In this case, the Anapa court did not indicate that the tools and software for bypassing blocking in Russia were illegal, did not find any extremist statements, calls for violence and illegal actions, child pornography or any other prohibited content on the Roskomsvoboda website. The only justification for the decision was the fact that the means of bypassing the blocking could assist users in gaining access to extremist content on other sites that have nothing to do with the applicant.

However, the ECHR believes that the means of bypassing blocking listed on the Roskomsvoboda page cannot be equated with tools for accessing extremist content: they also serve to ensure secure communication between remote servers, speed up data transfer, and provide fast and free online translation of texts. The Russian court did not take into account any of these entirely legitimate purposes for using such funds.

Moreover, information technologies are generally "content-neutral": they serve to store information and access it, but cannot be equated with the content itself, whatever its legal status. Just as a printing press can be used to print both a school textbook and an extremist pamphlet, so the Internet stores and makes available a wealth of information, some parts of which may be banned for one reason or another, depending on the jurisdiction. However, the idea of ​​banning information about technologies for accessing online information on the grounds that they can in some cases facilitate access to extremist materials is no different from the idea of ​​banning printers and copiers as potentially used to print such materials. In this regard, since the blocking was carried out in the absence in Russia of a special legislative framework regulating this problem, the ECtHR regarded it as arbitrary.

By analogy with the Kablis case, the ECHR concluded that, given the breadth of the wording of paragraph 2 of part 5 of Art. 15.1 of the Law "On Information", it is extremely difficult, if not impossible, to appeal decisions made on the basis of this law. Using arguments similar to those given above in the Bulgakov case, the Strasbourg court decided that Russian law did not provide website owners with sufficient procedural guarantees of protection against arbitrary interference with their right to freedom of expression, that the process was not adversarial, that the case was not considered in accordance with the requirements European Convention on Human Rights as interpreted by the ECtHR. Thus, the interference with the applicant's right to freedom of expression was not based on law, the ECtHR decided. He recognized Russia as having violated Art. 10 and 13 of the Convention and awarded Engels 10,000 euros in respect of non-pecuniary damage.

"Vladimir Kharitonov vs. Russia"

The executive director of the Association of Internet Publishers, the owner of the site "News of electronic book publishing" Vladimir Kharitonov challenged the blocking of his site (digital-books.ru) in the ECHR. From December 2012 to March 22, 2013, the site was unavailable due to the fact that its IP address was the same as the IP of the site "Rastaman Tales" (both sites were served by the hosting provider DreamHost). The decision to block Rastaman Tales was made by the Federal Drug Control Service. Kharitonov appealed the blocking to the Tagansky District Court, but the court ruled that Roskomnadzor acted within its powers; This opinion was supported by the Moscow City Court. The impact of the blocking on the applicant's website was not examined by the Russian courts. On July 17, 2014, the Constitutional Court of Russia rejected Kharitonov's complaint against Art. 15.1 of the federal law "On Information", laying responsibility for the violation of access to the site on the hosting provider.

In this decision, the ECtHR also noted that Art. 15.1 allows the authorities to block entire sites without distinguishing between legal and illegal content on them, that is, worded so broadly as to carry the risk of groundlessly and excessive blocking of content. And if the site "Rastaman Tales" did contain some allegedly illegal content, then Kharitonov's site had nothing to do with it at all. Thus, interference with Kharitonov's right to freedom of expression cannot be justified by Art. 15.1 of the law.

From a technical point of view, the blocking of Kharitonov's website was an automatic consequence of Roskomnadzor's decision to add the IP address of another website to the banned list. As a result of this decision, a whole group of sites hosted by DreamHost on the same IP address was blocked at once. The decision was made by Roskomnadzor in accordance with Part 9 of Art. 15.1 of the law. As noted by the ECHR, this rule gives Roskomnadzor broad powers, but does not oblige it, if it is necessary to block by IP, to check whether this IP address is used by other sites. This has a practical consequence: the decision to block can (and did, in the case of Kharitonov's website) apply not only to the illegal content it refers to.

Shared hosting, in which sites are located on the same server, the ECtHR pointed out, is a popular and affordable solution for small and medium-sized web resources. Their owners may not be aware of the content of the hosting neighbors, and the host - in this case, a company outside Russian jurisdiction - has no obligation to the Russian authorities in terms of identifying illegal content. Thus, the user of any such virtual hosting runs the risk of getting into a situation where another site on the hosting is blocked by the Russian authorities, but neither its owners nor the hoster delete the prohibited information. Russian law did not oblige the applicant to control the content of hosting neighbors or the hoster's compliance with the requirements to delete information. However, due to the extensive powers granted to Roskomnadzor in matters of blocking, Kharitonov faced the consequences of the blocking decision solely due to an accidental, existing at the infrastructure level, connection with illegal content published by someone else, the ECtHR explained. Consequently, in the opinion of the Strasbourg Court, this law did not provide foreseeability and did not give the applicant the opportunity to regulate his conduct.

Speaking about the mechanisms of protection against abuses of the law, the ECtHR noted that the decision of the Federal Drug Control Service and the subsequent decision of Roskomnadzor to block was taken without notifying potentially interested parties; the blocking was not authorized by a court or similar independent body, where the interested persons could express their attitude towards it; Roskomnadzor has not assessed the potential impact of the blocking. As the Russian side of the ECtHR case admitted, under the law Roskomnadzor was not obliged to assess the side effects of blocking by IP, although this can be done using the simplest network tools (search for domains by IP).

Commenting on the issue of the transparency of blocking, the representative of Russia to the ECHR said that information about them is available on the website of Roskomnadzor. The ECtHR acknowledged that the agency maintains a register of blocking, but noted that it does not provide access to blocking decisions, it does not indicate the reasons for the ban and does not provide information on how to appeal. The law also does not define the procedure for notifying third parties whose rights the blocking may cause collateral damage. Finally, Kharitonov never got access to the blocking decision: it was not presented in court, and the court rejected Kharitonov's request for his request and announcement.

Finally, from the point of view of the ECHR, the Russian courts did not weigh the interests of the parties, in particular, they did not evaluate the need to block all sites with the same IP. They did not use the decision of the Supreme Court, which refers to the application of the requirements of the European Convention on Human Rights in the interpretation of the ECtHR. The courts limited themselves to pointing out that Roskomnadzor acted within its powers, and had to take into account the fact that the blocking affected large amounts of information, significantly restricted the rights of Internet users and entailed noticeable side effects.

Thus, the ECHR declared the application of Art. 15.1 of the Law “On Information” in the case of Kharitonov did not satisfy the criterion of foreseeability, the applicant was not provided with sufficient protection against abuse, and, therefore, the interference with his right to freedom of expression was not based on law. The ECtHR recognized Russia as violating Art. 10 and 13 of the Convention and ordered her to pay Kharitonov 10,000 euros in compensation for non-pecuniary damage and 2,000 euros in legal costs.

Sources

• THIRD SECTION. CASE OF OOO FLAVUS AND OTHERS v. RUSSIA (Applications nos. 12468/15 and 2 others – see appended list). JUDGMENT // ECHR. 2020. 23 June.
• THIRD SECTION. CASE OF BULGAKOV v. RUSSIA (Application no. 20159/15). JUDGMENT // ECHR. 2020. 23 June.
• THIRD SECTION. CASE OF ENGELS v. RUSSIA (Application no. 61919/16). JUDGMENT // ECHR. 2020. 23 June.
• THIRD SECTION. CASE OF VLADIMIR KHARITONOV v. RUSSIA (Application no. 10795/14). JUDGMENT // ECHR. 2020. 23 June.
• Pavel Chikov. Agora asks the Prosecutor General to unblock the websites of Kasparov.ru, Grani.ru and Ezhednevny Zhurnal // Telegram. 2020. June 23.