ECtHR finds Russian website blocking approach contrary to Article 10 ECHR (freedom of expression and information)

The ECtHR

Earlier this week, the European Court of Human Rights (ECtHR) had the opportunity to assess website blocking from the perspective of freedom of expression under Article 10 of the European Convention on Human Rights (ECHR) in its judgment in Vladimir Kharitonov v Russia [see here and here for the commentaries of two of the third-party interveners in the case].

Background

The applicant, Mr Kharitonov, is the owner and administrator of the website Electronic Publishing News (http://www.digital-books.ru), which features a compilation of news, articles and reviews about electronic publishing.

The website is hosted by DreamHost, a service which hosts multiple websites, all with the same IP address but different domain names.

In late 2012, the applicant became aware that access to his website had been blocked by a number of Russian ISPs as a result of an order of the Russian telecoms regulator (Roskomnadzor) which, in turn, had given effect to a decision of the Federal Drug Control Service. The order was directed at blocking another website, rastaman.tales.ru (“a collection of cannabis-themed folk stories”), also hosted by DreamHost and sharing the same IP address as Electronic Publishing News.

On 22 March 2013, the blocking of the IP address ceased.

Mr Kharitonov brought a claim to the Taganskiy District Court in Moscow, arguing that the decision to block the entire IP address had resulted in the undue blocking of his website, which did not contain any illegal information.

The action at both first instance and on appeal failed. In 2014, the Constitutional Court also refused to consider a separate application filed by Kharitonov, who eventually decided to bring his case against Russia to the ECtHR.

His key argument was that Russian authorities’ decision to block access to the offending website by blacklisting its IP address, whilst pursuing the legitimate aim of blocking access to information about the production and use of drugs (which, however, was not what rastaman.tales.ru did), had also had the disproportionate collateral effect of blocking access to his website and would thus be contrary to Articles 10 and 13 ECHR.

With particular regard to the Article 10 violation, the ECHR reasoned as follows.

Effective ...

The decision

The Court began its assessment by referring to its prior decision in Ahmet Yıldırım v Turkey. Having noted the importance of the internet to the exercise of freedom of expression and information, the ECtHR recalled that “measures blocking access to websites are bound to have an influence on the accessibility of the Internet and, accordingly, engage the responsibility of the respondent State under Article 10”.

In the present case, the applicant had been prevented from sharing the latest developments and news about electronic publishing (that is: exercising his freedom to impart information), while visitors to his website had had their freedom to receive information compressed. Hence, “such interference will constitute a breach of Article 10 unless it is “prescribed by law”, pursues one or more of the legitimate aims referred to in Article 10 § 2 and is “necessary in a democratic society” to achieve those aims.”

Under domestic law, the legal basis for the blocking had been section 15.1 of the Russian Information Act, which – noted the Court “with concern” – allows targeting an entire website without distinguishing between the legal and illegal content that it may contain:

Reiterating that the wholesale blocking of access to an entire website is an extreme measure which has been compared to banning a newspaper or television station, the Court considers that a legal provision giving an executive agency so broad a discretion carries a risk of content being blocked arbitrarily and excessively [emphasis added]

This said, the requirement of “prescribed by law” is not only fulfilled when the relevant authority acts in accordance with the letter of the law. Rather:

The Court must also ascertain whether the quality of the law in question enabled the applicant to regulate his conduct and protected him against arbitrary interference.

This, concluded the Court, was not the case in the present instance. In addition, the domestic law does not contain any safeguards against abuse, in terms of: 

• information provided to those whose website would be blocked; 
• supervision by a court or other independent authority; 
• ex ante impact assessment of the effects of the blocking; 
• transparency; and 
• weighing and balancing of the various interests and rights at hand.

The Court concluded that the applicant’s freedom of expression under Article 10 ECHR had been violated.

... and less effective blocking

Comment

As mentioned, the decision afforded the ECHR with the opportunity to review website blocking in light of inter alia Article 10 ECHR. On the one hand, the Court considered that the blocking of an entire website is to be regarded as an “extreme measure”. On the other hand, it did not consider that website blocking orders per se would be contrary to that provision. However, it is necessary that this particular remedy is available within a balanced and carefully drafted legislative framework, which contains a robust and articulated set of safeguards against abuse.

Looking at this ruling from an EU copyright perspective [it might be worth recalling that the ECtHR is not an EU court, nor is the ECHR an EU instrument], the Court’s conclusion is substantially in line with what the Court of Justice of the European Union (CJEU) established in Telekabel [IPKat post here], a referral which considered website blocking orders under Article 8(3) of the InfoSoc Directive.

In that decision, the CJEU specifically conducted an assessment in light of fundamental rights and the principle of proportionality. In considering whether that particular type of intermediary injunction would be compatible with EU law and concluding in the affirmative, the CJEU noted that the rights at issue in a context of this kind would be copyright protection (Article 17(2) of the EU Charter of Fundamental Rights), freedom to conduct a business (Article 16 of the EU Charter), and freedom of expression and information (Article 11 of the EU Charter). 

Overall, the EU court stated that the measures adopted to implement a blocking order must be strictly targeted: they must serve to bring an end to a third party’s infringement of copyright or of a related right but without thereby affecting internet users who are using the provider’s services in order to lawfully access information. Failing that, the interference in the freedom of information of those users would be unjustified in the light of the objective pursued, and it should be possible for a court to repress any abuses thereof.

Finally, it is also worth noticing that, in order to limit the risk of overblocking whilst enhancing the effectiveness of blocking orders, more recently courts in different European jurisdictions have begun issuing dynamic or live blocking orders. This has been, for instance, the case in the UK [here and here], Italy [here], and Sweden [here]. These measures are said to have achieved both objectives and are increasingly preferred to 'old school' blocking injunctions.