The ECHR upheld the complaint against the blocking of the second website of the Daily Journal

The European Court found that Russia had violated the site's owners' right to freedom of expression.

On January 17, 2023, the European Court of Human Rights published the decision on complaint 55496/19 “Mediafocus LLC v. Russia”, issued on December 6, 2022. The complaint was filed on October 11, 2019 by the owner of the opposition online publication Ezhednevny Zhurnal, founded in 2004.

The complaint concerns the blocking of the new site of the publication (ej2015.ru) as a mirror of the former site (ej.ru). Recall that on March 13, 2014, the Prosecutor General's Office ordered Roskomnadzor to block the ej.ru website and all its known mirrors for allegedly containing calls for extremist activities on its pages. This blocking was contested in the framework of the complaint “LLC Flavus and others v. Russia”: according to the decision of the ECtHR on this complaint, published on June 23, 2020, the restriction of access to the websites of the publications Grani.ru, Kasparov.ru and Ezhednevny Zhurnal “was an interference with the applicants’ right to freedom of expression and was not based on law.

In 2015, the owners of Ezhednevny Zhurnal created a new site, ej2015.ru, without transferring content from the old site to it. On November 29, 2017, they discovered that access to it was closed - as it turned out, on the basis of the same requirement of the Prosecutor General's Office of March 13, 2014 - as a mirror of the old site, which, accordingly, also contains calls for extremist activity. At the same time, Roskomnadzor did not explain which pages of the new site contain illegal content. The owners of the site went to court.

On March 15, 2018, the Tagansky District Court of Moscow dismissed the complaint of Mediafocus LLC, citing its own decision to recognize the 2014 claim of the Prosecutor General's Office as justified. The objections of the applicant, who indicated that it was a new site that did not appear in the demand, the court rejected, stating that the law does not oblige the Prosecutor General's Office to indicate all sites, access to which should be restricted. The court also refused to examine the content of the new site, as it considered sufficient evidence the assertion of the Prosecutor General's Office that the site contained illegal content. The court also pointed out that Roskomnadzor was not obliged to point the applicant to specific pages with such content. On September 4, 2018, the Moscow City Court dismissed the applicant’s appeal, explaining that the vagueness of the term “mirror” does not yet give grounds to consider the Prosecutor General’s demand illegal, since the new site is obviously a copy of the old one with a new domain name, because it was created by the same people.

On February 11, 2019, the Moscow City Court, and then on April 18 of the same year, the Supreme Court denied the applicant the opportunity to appeal this decision in cassation.

The ECtHR recognized the complaint of Mediafocus LLC as substantiated. The Strasbourg Court pointed out that the groundlessness of blocking the old site of the Daily Journal was established earlier in the course of consideration of the complaint “LLC Flavus and others v. Russia.” The ECHR also recalled that Russian law provides for both blocking sites due to illegal content and restoration of access to them after removal of this content.However, in order for this mechanism to work, illegal content must be clearly identified, otherwise the owner of the site will not be able to remove the relevant information in order to block it. Moreover, the blocking of the new site is not based on the law, since it contained new content, to which the requirement of 2014 could not apply in any way. Thus, blocking a site just because its domain name resembles the name of a previously blocked site, and they have a common owner, does not have a clear legal justification. In fact, the Russian courts did not take into account at all that the new site could have completely different content.

The European Court recalled that Russian law does not provide procedural guarantees capable of protecting website owners from arbitrary interference with their rights. The blocking procedure does not provide for their participation, they are not guaranteed the opportunity to remove illegal content before access is restricted. The authorities are not required to evaluate the potential effect of blocking in order to justify the necessity and proportionality of restricting freedom of expression online and to ensure that the blocking does not affect the entire site, but only the illegal part of the information.

The ECtHR concluded that the interference with the applicants' rights in this case was not based on law, since the notion of a mirror was applied arbitrarily and no illegal content was identified. In such a situation, consideration of the need to restrict the applicant's right in a democratic society and the legitimacy of the goal turns out to be redundant: and so it is obvious that the guaranteed art. 10 of the Convention, the right of site owners to freedom of expression was violated.

The Strasbourg court ordered Russia to pay the applicant 7,500 euros as compensation for non-pecuniary damage, as well as reimburse the legal expenses incurred by him.

It should be noted that although Russia refused to comply with the decisions of the ECtHR issued after March 15, 2022, the Convention prescribes otherwise: according to Part 2 of Art. 58, denunciation does not release a party from its obligations in respect of any act which could be a breach of such obligations and was committed by it before the effective date of the denunciation.

Sources

• Application no. 55496/19 CASE OF OOO MEDIAFOKUS v. RUSSIA // ECHR. 2023. January 17.