Lexploria

Information Note on the Court’s case-law 241

June 2020

Bulgakov v. Russia - 20159/15

Judgment 23.6.2020 [Section III]

Article 10

Article 10-1

Freedom to impart information

Freedom to receive information

Access blocked to entire website because of one piece of prohibited material and continued blocking even after material had been removed: violation

Facts – The applicant, the owner and administrator of a website, h ad access to his entire website blocked by a local ISP (Internet service provider) pursuant to a judicial decision, because it contained an e-book previously categorised as extremist material. The blocking order was not lifted even after the e-book had bee n removed.

Law – Article 10: The impugned measure had amounted to “interference by a public authority” with the right to receive and impart information. As regards the scope of the interference, the applicant had not disputed that the e-book which had been available on his website had constituted prohibited material. He took issue, however, with the domestic courts’ decisions to block access to his entire website because of one piece of prohibited material and to continue blocking access even after that mat erial had been removed.

In so far as the District Court’s decision targeted the e-book, the interference had had a legal basis in section 10(6) of the Information Act and could be said to have been “prescribed by law”. However, the District Court had also determined the method of implementation of the blocking measure, ordering the blocking of access to the offending content by blocking access to the entire website. That blocking method, which prevented users from connecting to the website located at a spe cified numerical network address (IP address), had been widely used.

The wholesale blocking of access to an entire 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 designated as illegal. Blocking access to a website’s IP address had the practical effect of extendi ng the scope of the blocking order far beyond the illegal content which had originally been targeted. Such an extension did not have a legal basis in the circumstances of the applicant’s case. Section 10 of the Information Act allowed the authorities to ta rget content that was proscribed under administrative or criminal law, rather than an entire website. The blocking formula employed by the District Court did not feature in any primary legislation or implementing regulations. The Government, in their obser vations, had not pointed to any legal provision on which the method of implementation chosen by the District Court could have been based.

Turning next to the issue of the safeguards which domestic legislation had to provide to protect individuals from the excessive and arbitrary effects of blocking measures, the Court noted that the Russian law did not require any form of involvement of the website owner, such as the applicant, in blocking proceedings conducted under section 10(6) of the Information Act. The prosecutor’s application for a blocking order had been prepared without advance notification to the parties whose rights and interests w ere likely to be affected. The applicant had not been informed of the prosecutor’s application or afforded the opportunity to remove the illegal content before the application was lodged with the court. The District Court had not invited him to intervene i n the proceedings or to make submissions, treating the matter as being between the prosecutor and the local ISP.

The participation of a local ISP as the designated defendant was not sufficient to bestow an adversarial character on the proceedings. The ISP provided technology enabling users to access millions of websites it knew nothing about. It did not have the same detailed knowledge of their contents as their owners did; nor did it have the legal resources required to mount a vigorous defence of every ta rgeted website. The ISP had no vested interest in the outcome of the proceedings. Blocking orders had no incidence on its connectivity business; they were enforceable not just against the defendant ISP but, once final, they acquired universal effect requir ing all Russian ISPs to implement blocking measures. The blocking proceedings which had been conducted in the applicant’s absence had not been adversarial in nature and had not provided a forum in which the interested parties could have been heard.

In the proceedings which the applicant had instituted to challenge the blocking measure, the domestic courts had not applied the Plenary Supreme Court’s Ruling no. 21 of 27 June 2013, which required them to have regard to the criteria established in the Conventio n in its interpretation by the Court. Nor had they considered whether the same result could be achieved with less intrusive means or carry out an impact assessment of the blocking measure to ensure that it strictly targets the illegal content and has no ar bitrary or excessive effects, including those resulting from the method chosen to implement it. As regards the transparency requirement, the Information Act made no provision for communicating the decision taken under section 10(6) to the owner of the targ eted website. The applicant had been unaware of the blocking order until he discovered that access to his website had been blocked.

The second aspect of the interference which the applicant had complained of was the refusal to lift the blocking order after the unlawful content had been removed. The Court had found above that there was no legal basis for blocking access to the applicant’s entire website when it contained one page of extremist material. That finding of unlawfulness applied a fortiori to the c ontinued blocking of the website after that material had been removed.

The Court concluded that the interference resulting from the application of the procedure under section 10(6) of the Information Act had had excessive and arbitrary effects and that the Russian legislation had not afforded the applicant the degree of protection from abuse to which he was entitled by the rule of law in a democratic society. Accordingly, the interference had not been “prescribed by law”.

Conclusion : violation (unanimously).

The Court also found, unanimously, a violation of Article 13 taken in conjunction with Article 10 as the appellate court had not considered the substance of his grievance and had not examined the necessity or proportionality of t he blocking measure.

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

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

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