Communicated on 27 April 2017

THIRD SECTION

Application no. 10795/14 Vladimir Vladimirovich KHARITONOV against Russia lodged on 27 December 2013

STATEMENT OF FACTS

The applicant, Mr Vladimir Vladimirovich Kharitonov , is a Russian national, who was born in 1969 and lives in Moscow. He is represented before the Court by Mr D. Gaynutdinov , a lawyer practising in Moscow.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is the executive director of the Association of Electronic Publishers, a non-commercial partnership, and a co-founder of the Association of Internet Users, a non-governmental organisation. He is the owner and administrator of the www.digital-books.ru website which features a compilation of news, articles and reviews about electronic publishing.

The website had existed since 19 May 2008 and was hosted by Dreamhost , a US-based provider of shared web hosting service. The service provides hosting to multiple websites which reside on a single machine with a single IP address but have different domain names. When the user ’ s browser requests a website from the server, it includes the requested domain name as part of the request. The server uses this information to determine which website to show the user.

In late December 2012 users from various Russian regions reported to the applicant that access to his website was blocked by their internet providers by reference to “a decision by the competent Russian authority”. He checked the register of websites blacklisted by the Federal Telecom Supervision Service ( Roskomnadzor ) and found out that the IP address of his website had been entered into the blacklist by the decision of the Federal Drug Control Service dated 19 December 2012. The decision was intended to block access to another website, The Rastafari Tales (www.rastaman.tales.ru), featuring a collection of fictional stories about the use of cannabis, which was also hosted by Dreamhost with the same IP address as the applicant ’ s website.

The applicant complained to a court that the decision to block the entire IP address had the effect of blocking access to his website which did not contain any illegal information.

On 19 July 2013 the Taganskiy District Court in Moscow rejected the applicant ’ s complaint, holding that Roskomnadzor had acted within its competence, in accordance with the law and for the purpose of protecting children from harmful information relating to the use of drugs. It did not assess the impact of the contested measure on the applicant ’ s website.

The applicant filed an appeal, relying in particular on the Court ’ s findings in the case of Ahmet Yıldırım v. Turkey (no. 3111/10, ECHR 2012) which concerned indiscriminate blocking of a hosting service.

On 12 September 2013 the Moscow City Court dismissed the appeal, finding that the principle of proportionality had not been disrespected because Roskomnazdor had lawfully blocked access to unlawful information. It did not address the effect of the blocking decision on the applicant ’ s website.

B. Relevant international material

Joint declaration on freedom of expression and the Internet, adopted on 1 June 2011 by the United Nations (UN) Special Rapporteur on Freedom of Opinion and Expression, the Organization for Security and Co-operation in Europe (OSCE) Representative on Freedom of the Media, the Organization of American States (OAS) Special Rapporteur on Freedom of Expression and the African Commission on Human and Peoples ’ Rights (ACHPR) Special Rapporteur on Freedom of Expression and Access to Information, provides in particular -

1. General Principles

“a. Freedom of expression applies to the Internet, as it does to all means of communication. Restrictions on freedom of expression on the Internet are only acceptable if they comply with established international standards, including that they are provided for by law, and that they are necessary to protect an interest which is recognised under international law (the ‘ three-part ’ test).

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d. Greater attention should be given to developing alternative, tailored approaches, which are adapted to the unique characteristics of the Internet, for responding to illegal content, while recognising that no special content restrictions should be established for material disseminated over the Internet.”

3. Filtering and Blocking

“a. Mandatory blocking of entire websites, IP addresses, ports, network protocols or types of uses (such as social networking) is an extreme measure – analogous to banning a newspaper or broadcaster – which can only be justified in accordance with international standards, for example where necessary to protect children against sexual abuse.”

In its General Comment No. 34 on Article 19 of the International Covenant on Civil and Political Rights, adopted at its 102nd session (11-29 July 2011), the United Nations Human Rights Committee stated as follows:

“43. Any restrictions on the operation of websites, blogs or any other Internet-based, electronic or other such information-dissemination system, including systems to support such communication, such as Internet service providers or search engines, are only permissible to the extent that they are compatible with paragraph 3. Permissible restrictions generally should be content-specific; generic bans on the operation of certain sites and systems are not compatible with paragraph 3. It is also inconsistent with paragraph 3 to prohibit a site or an information-dissemination system from publishing material solely on the basis that it may be critical of the government or the political social system espoused by the government.”

COMPLAINTS

The applicant complains under Article 10 of the Convention that the blocking of the offending website by its IP address had the disproportionate effect of blocking access to his website.

The applicant complains under Article 13 of the Convention that the Russian courts did not consider the substance of his grievance relating to the blocking of access to the website.

QUESTIONS TO THE PARTIES

1. As regards the blocking of access to the applicant ’ s website, was there a violation of Article 10 of the Convention (compare Ahmet Yıldırım v. Turkey , no. 3111/10, ECHR 2012)? In particular, are the relevant laws and regulations sufficiently precise and foreseeable in their application? Do they make a provision for a wholesale blocking of access to all the websites sharing the same IP address? Do they afford a sufficient degree of protection and require the executive authority ( Roskomnadzor ) and the courts to consider the various interests at stake and the collateral effect that a wholesale blocking decision may have on other co-hosted websites, such as the applicant ’ s?

2. Did the applicant have at his disposal an effective remedy, enabling him to have the collateral effects of the impugned measure reviewed by the courts, as required by Article 13 of the Convention, taken in conjunction with Article 10?