Lexploria

Information Note on the Court’s case-law 241

June 2020

Engels v. Russia - 61919/16

Judgment 23.6.2020 [Section III]

Article 10

Article 10-1

Freedom to impart information

Freedom to receive information

Website owner compelled to remove information on filter-bypassing tools, which was arbitrarily banned by court, in order to avoid blocking of his entire website: violation

Facts - The applicant, the owner and admi nistrator of a website dedicated to the protection of freedom of expression online and digital privacy, was confronted with the choice of removing allegedly illegal content and having access to his entire website blocked following a decision by a Russian c ourt, determining that a section of his website constituted banned information and requiring the telecoms regulator to immediately block access. He removed the content in issue.

Law – Article 10: The court’s decision that the content of one of the applican t’s webpages was illegal had caused the applicant to take it down in order to avoid the blocking measure and had also prevented visitors to the website from accessing that content. It had amounted therefore to “interference by a public authority” with the right to receive and impart information. The statutory basis for the interference had been section 15.1 of the Information Act. Subsection (5) of that provision listed three types of decisions by which the Russian authorities might categorise online conten t as illegal. In the applicant’s case, the decision had been made by a court of general jurisdiction in accordance with the second part of subsection (5). Unlike the first part of that subsection, which defined seven particular categories of online content susceptible to blocking, or the third part, which referred expressly to libellous content, the second part allowed websites to be blocked on the basis of a “judicial decision which identified particular Internet content as constituting information the dis semination of which should be prohibited in Russia”.

The breadth of that provision was exceptional and unparalleled. It did not give the courts or website owners any indication as to the nature or categories of online content that was susceptible to be ban ned. Nor did it refer to any secondary legislation, by-laws or regulations which could have circumscribed its scope of application. Such a vague and overly broad legal provision failed to satisfy the foreseeability requirement. It did not afford website ow ners, such as the applicant, the opportunity to regulate their conduct, as they could not know in advance what content was susceptible to be banned and could lead to a blocking measure against their entire website.

The applicant’s case illustrated the mann er in which that legal provision was capable of producing arbitrary effects in practice. Following an application lodged by a town prosecutor, a Russian court had held that the information about filter-bypassing tools and software available on the applican t’s website had constituted “information the dissemination of which should be prohibited in Russia”. It had not established that filter-bypassing technologies were illegal in Russia or that providing information about them was contrary to any Russian law. Nor had it found any extremist speech, calls for violence or unlawful activities, child pornography, or any other prohibited content on the applicant’s webpage. The only basis for its decision was the fact that filter-bypassing technologies might enable us ers to access extremist content on some other website which was not connected or affiliated with the applicant and the content of which he had no control over.

The utility of filter-bypassing technologies could not be reduced to a tool for malevolently seeking to obtain extremist content. The Russian Court had not considered the multitude of legitimate purposes before issuing the blocking order.

All information t echnologies, from the printing press to the Internet, had been developed to store, retrieve and process information and information technologies were content-neutral. They were a means of storing and accessing content and could not be equated with content itself, whatever its legal status happened to be. Just as a printing press could be used to print anything from a school textbook to an extremist pamphlet, the Internet preserved and made available a wealth of information, some portions of which might be p roscribed for a variety of reasons particular to specific jurisdictions. Suppressing information about the technologies for accessing information online on the grounds they might incidentally facilitate access to extremist material was no different from se eking to restrict access to printers and photocopiers because they could be used for reproducing such material. The blocking of information about such technologies interfered with access to all content which might be accessed using those technologies. In t he absence of a specific legal basis in domestic law, such a sweeping measure was arbitrary.

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 m easures, the Court considered that the breadth of the discretion afforded by subsection (5)(2) of section 15.1 of the Information Act was such that it was likely to be difficult, if not impossible, to challenge the court’s decision on appeal. Russian law d id not provide website owners, such as the applicant, with any procedural safeguards capable of protecting them against arbitrary interference. It did not require any form of involvement of the website owners in the blocking proceedings conducted under sec tion 15.1 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 were likely to be affected. Even though the applicant’s contact details had feature d prominently on the website, he had not been informed or invited to explain the purpose of the information about unfiltered browsing technologies. The Town Court had not invited him to intervene in the proceedings or to make submissions, treating the matt er as being between the prosecutor and the local Internet service provider (ISP).

The participation of a local ISP as the designated defendant was not sufficient to endow the proceedings with an adversarial character. The ISP provided a connectivity techno logy enabling users to access millions of websites which 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 targeted we bsite. 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, acquired universal effect requiring all Russia n 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. Neither the prosecuto r nor the Town Court had made any assessment of the impact of the blocking measure prior to its implementation; nor had they explained the urgency of enforcing it immediately without giving the interested parties the opportunity to lodge an appeal.

Lastly, as regards the proceedings which the applicant had instituted to challenge the blocking order, 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 Convention in its interpretation by the Court. In reaching that decision, the Regional Court had not sought to weigh up the various interests at stake. It had confined its scrutiny to establishing formal compliance with the letter of the law. However a Convention compliant review should have taken into consideration, among other elements, the fact that a blocking measure, by rendering large quantities of legitimate information inaccessible, substantially restricted the rights of the website owner and o f Internet users, and had a significant collateral effect.

It was incompatible with the rule of law if the legal framework failed to establish safeguards capable of protecting individuals from excessive and arbitrary effects of sweeping blocking measures, such as those in issue in the applicant’s case. In the light of its examination of the Russian legislation as applied in the case, the Court concluded that the interference resulted from the application of the procedure under subsection (5)(2) of section 1 5.1 of the Information Act which did not satisfy the foreseeability requirement under the Convention and did not afford 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 was not “prescribed by law”.

Conclusion : violation (unanimously).

The Court also found, unanimously, a violation of Article 13 in conjunction with Article 10 on the basis that the Russian courts had not considered the substance of the grievance and had not examined the necessity or the proportionality of the effects of t he blocking order.

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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