Information Note on the Court’s case-law 241

June 2020

Ooo Flavus and Others v. Russia - 12468/15, 23489/15 and 19074/16

Judgment 23.6.2020 [Section III]

Article 10

Article 10-1

Freedom to impart information

Freedom to receive information

Unjustified wholesale blocking of opposition online media outlets in breach of requirement to specify offending content: violation

Facts – The applicants, owners of online media outlets which published articles, opinion pieces and research by opposition politicians, journalists and experts, many of which were critical of the Russian Government, had their websites blocked on the grounds that some of their webpages featured u nlawful content.

Law – Article 10: The measure amounted to “interference by a public authority” with the right to receive and impart information. In the applicants’ case the questions of compliance with the law and of the existence of a legitimate aim cou ld not be dissociated from the question of whether the interference had been “necessary in a democratic society”. The Court would therefore examine them together.

Access to the applicants’ online media had been blocked in accordance with section 15.3 of th e Information Act. That provision allowed the Prosecutor General or his deputies to request the blocking of three categories of content, including calls for mass disorder or for participation in public events held in breach of the established procedure. Su bsection (2) of section 15.3 set out requirements in respect of the contents of Roskomnadzor’s notification, which had to specify, in particular, the URL of the web page permitting illegal content to be identified. The actual notices which Roskomnadzor had despatched had deviated from that requirement in that they had listed the website’s entire domain, rather than a particular problematic webpage. Not only had that failure run counter to the requirement that the information provided by Roskomnadzor should permit identification of the content to be taken down, but it had also deprived the applicants of the opportunity to remedy the supposed breach by removing the offending content. By failing to specify the URL of the webpages they had considered problematic , the Russian authorities had acted in an arbitrary manner which had prevented the applicants from making an informed choice between taking down or modifying the specific content and formulating a legal objection to the Prosecutor General’s demand by refer ence to particular webpages.

Two of the websites had been held liable for writing approvingly of protests and public performances in support of the defendants in the Bolotnaya case. The Prosecutor General had interpreted those articles as amounting to call s for participation in unauthorised public events. The Court had previously found that the concept of “public events held in breach of the established procedure” in section 15.3 was excessively broad and that the Prosecutor General had invoked that particu lar ground to target content which did not feature any such calls.

The applicants’ media outlets had reported on the developments in the proceedings in relation to the Bolotnaya case and the arrests made by the police, consistent with their journalistic duty to keep the public informed on issues of general interest and to offer different perspectives, including those which might be critical of official policy. The Prosecutor General’s blocking request had failed to identify any parts of the publications mentioning planned public events, whether authorised or otherwise, or inviting the public to participate in them. Voicing support for people who had been put on trial in connection with the Bolotnaya events or for those who had found ways of showing their solidarity with the defendants could not be treated as calls for unaut horised public events. Reiterating that expression on matters of public interest was entitled to strong protection, the Court found that the interpretation adopted by the Prosecutor General had had no basis in fact and was therefore arbitrary and manifestl y unreasonable.

The Prosecutor General had also claimed that another website had reproduced an image of a pamphlet inciting Crimeans to commit “unlawful actions”. The Prosecutor General’s decision had not specified the nature of the allegedly unlawful acti ons, the elements which rendered them unlawful or the authority that allowed a Russian prosecutor to determine which conduct by non-Russian nationals living outside the Russian jurisdiction should be considered unlawful. In any event, the generic term of “ unlawful actions” did not fall within any of the three categories of prohibited content defined in section 15.3. It followed that the Prosecutor General’s decision regarding that content had not had a legal basis.

To the extent that the interference had ta rgeted the content which was considered illegal under section 15.3, it had not followed the procedure established in the domestic law and had fallen foul of the lawfulness requirement. In so far, however, as the Prosecutor General had requested, and Roskom nadzor had implemented, a blocking order against the applicants’ entire websites, the Court continued its examination to establish whether the blocking of access to the entire websites had pursued a legitimate aim and could be considered “necessary in a de mocratic society”.

The wholesale blocking of access to a website was an extreme measure which had been compared to banning a newspaper or television station. Such a measure deliberately disregarded the distinction between the legal and illegal information the website might contain, and rendered inaccessible large amounts of content which had not been identified as illegal. Blocking access to the entire website had the practical effect of extending the scope of the blocking order far beyond the illegal conte nt which had been originally targeted.

The decision on the illegal nature of the websites’ content had been made in the applicants’ case on spurious grounds or outright arbitrarily. However, even if there had been exceptional circumstances justifying the b locking of illegal content, a measure blocking access to an entire website had to be justified on its own, separately and distinctly from the justification underlying the initial order targeting illegal content, and by reference to the criteria established and applied by the Court under Article 10. Blocking access to legitimate content could never be an automatic consequence of another, more restricted blocking measure in the way in which section 15.3 allowed the authorities to extend a limited blocking req uest to encompass an entire website. Any indiscriminate blocking measure which interfered with lawful content or websites as a collateral effect of a measure aimed at illegal content or websites amounted to arbitrary interference with the rights of the own ers of such websites. The Government had not put forward any justification for the wholesale blocking order. They had not explained what legitimate aim or pressing social need the Russian authorities had sought to achieve by blocking access to the applican ts’ online media. The applicants’ claim that the true objective of the Russian authorities had been to suppress access to the opposition media outlets gave rise to serious concern. Lacking any justification for the wholesale blocking orders targeting the a pplicants’ websites, the Court found that they did not pursue any legitimate aim.

The blocking measures taken before a judicial decision had been issued on the illegality of the published content had amounted to a prior restraint on publications. The dange rs inherent in prior restraints were such that they called for the most careful scrutiny on the part of the Court and were justified only in exceptional circumstances. That was especially so as far as the press was concerned, for news was a perishable comm odity and to delay its publication, even for a short period, might well deprive it of all its value and interest. In cases of prior restraints on the operation of media outlets, a legal framework was required to ensure both tight control over the scope of bans and an effective Convention-compliant judicial review.

Russian law did not provide owners of online media, such as the applicants, with any procedural safeguards capable of protecting them against arbitrary interference under section 15.3 of the Infor mation Act. It did not require any form of involvement on the part of the website owners in the blocking proceedings. Both the Prosecutor General’s original decision and Roskomnadzor’s implementing orders had been made without advance notification to the p arties whose rights and interests were likely to have been affected. The law did not require that authorities carried out an impact assessment of the blocking measures prior to their implementation or justify the urgency of their immediate enforcement with out giving the interested parties the opportunity to remove the illegal content or apply for a judicial review. The blocking measures had not been sanctioned by a court or other independent adjudicatory body providing a forum in which the interested partie s could have been heard.

The Information Act did not require the authorities to justify the necessity and proportionality of the interference with the freedom of expression online or consider the question whether the same result could be achieved by less intrusive means. Nor did i t require them to ascertain that the blocking measure strictly targeted the illegal content and had no arbitrary or excessive effects, including those resulting from the blocking of access to the entire website.

As regards the transparency requirement, the Information Act made no provision for communicating the blocking request under section 15.3 to the owners of the targeted websites. The applicants had been unaware of the grounds for the blocking request until after access to their websites had been block ed and they had applied for a judicial review.

Lastly, as regards the proceedings which the applicants had instituted to challenge the blocking measures, the Court had previously found that the breadth of the executive’s discretion under section 15.3 was s uch that it was likely to be difficult, if not impossible, to challenge the blocking measure on judicial review. There was no indication that the judges considering their complaints had sought to weigh up the various interests at stake, in particular by as sessing the need to block access to the entire websites. That shortcoming was a consequence of the domestic courts’ failure to apply the Plenary Supreme Court’s Ruling no. 21 of 27 June 2013, which required them to have regard to the criteria established i n the Convention in its interpretation by the Court. In reaching their decision, the courts had confined their scrutiny to establishing that the Prosecutor General and Roskomnadzor had exercised the discretion which the legislation had afforded them. Howev er a Convention-compliant review should have taken into consideration, among other elements, the fact that such a measure, by rendering large quantities of information inaccessible, had substantially restricted the rights of Internet users and had a signif icant collateral effect.

The interference resulting from the application of the procedure under section 15.3 of the Information Act had had excessive and arbitrary effects and the Russian legislation had not afforded the applicants the degree of protection from abuse to which they had been entitled by the rule of law in a democratic society. In so far as the blocking measures had targeted the entire online media beyond the content originally identified as unlawful, the interference had had no justification under paragraph 2 of Article 10. It had not pursued any legitimate aim and had not been necessary in a democratic society.

Conclusion : violation (unanimously).

Article 41: EUR 10,000 to each applicant in respect of non-pecuniary damage.

The Court also foun d, unanimously, a violation of Article 13 in conjunction with Article 10 on the basis that the Russian courts had refused to consider the substance of the grievance and had examined neither the lawfulness nor the proportionality of the effects of the block ing order on the applicants’ websites.

(See also Ahmet Yıldırım v. Turkey , 3111/10, 18 December 2012, Information Note 158 )

© Council of Europe/European Court of Human Rights This summary by the Re gistry does not bind the Court.

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