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28 June 2020

Russia told not to block so much by European HR Court

In a decision that will not make the Russian authorities happy, the European Court of Human Rights (ECtHR) have ruled on the Russian law and its use in regards to the blocking of online content. The Russian law on website blocking was challenged under the freedom of expression right in Article 10 of the European Convention on Human Rights (ECHR).

The case was brought by Vladimir Kharitonov against the Russian state due to the blocking of his website Electronic Publishing News (http://www.digital-books.ru), which features a compilation of news, articles and reviews about electronic publishing.  It is important to note that the website is hosted by DreamHost, a service which hosts multiple websites, but all have the same IP address using different domain names.  As a result blocking orders focused against one site can impact another.

In 2012 Mr. Kharitonov realised 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).  Those blocks were due to a decision of the Russian Federal Drug Control Service. The intended focus was to block the website, rastaman.tales.ru.  It is also hosted by DreamHost using the same IP address as Electronic Publishing News.  Hence the intended impact of the order on Mr. Kharitonov.

Mr. Kharitonov first made a claim in the Taganskiy District Court in Moscow, where he complained that the decision to block the entire IP address had resulted in the blocking of his website, which did not contain any illegal information.  He had therefore suffered harm. The claim failed, as did an appeal, and so Mr. Kharitonov petitioned the ECtHR to hear a case against Russia.

Mr. Kharitonov complained that the block on the rastaman website by blacklisting its IP address, was disproportionate.  Although it was successful in blocking access to information as intended, it had also blocked access to his website contrary to Articles 10 and 13 ECHR.

The ECtHR considered the Article 10 claim and noted the importance of the internet to the exercise of freedom of expression and information, and confirmed that measures which block access to websites are bound to have affect and engage the responsibility of the respondent State under Article 10.  The Court reasoned that Mr. Kharitonov’s right to publish and impart information was affected, as was the right to receive information, both being part of the freedom of expression. The Court concluded that interference of this nature constitutes a breach of Article 10 unless it is ‘prescribed by law,’ and is legitimate under the exemption aims of Article 10.

Russian law does provide a legal basis for the blocking.  It is found in section 15.1 of the Russian Information Act.  However, the ECtHR was concerned that the law went too far, because it permits the targeting of an entire website without distinguishing between the legal and illegal content that it may contain.  The Court felt that blocking an entire site or address was an extreme measure, and risks arbitrary and excessive blocking by authorities.

The Court considered, when reviewing the Russian law, that it was entitled to consider the extent of the law and its application, to ensure that the regulating of conduct does not go too far, and protects a person against arbitrary interference. The Court was concerned that the law did 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;
  • There was no impact assessment of the effects of the blocking;
  • There was inadequate transparency; and
  • Insufficient weighing and balancing of the various interests and rights at hand.

As a result the application of this law to block Mr. Kharitonov’s website was a violation of his freedom of expression under Article 10 ECHR. The full judgment is here.

Comment

This judgment, together with decisions in OOO Flavus and Others v. Russia, Bulgakov v. Russia, and Engels v. Russia, has led the ECtHR to conclude 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.” Blocking therefore needs to be proportionate, and not to interfere with legitimate freedom of expression. In the age where blocking injunctions online are so important, this is a useful guide to how far a Government can go in legislating for such blocks and the ability to challenge the regulator.

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