Lexploria

Information Note on the Court’s case-law 241

June 2020

Vladimir Kharitonov v. Russia - 10795/14

Judgment 23.6.2020 [Section III]

Article 10

Article 10-1

Freedom to impart information

Freedom to receive information

Website blocked as automatic consequence of blocking order against another with same IP address: violation

Facts – The applicant, the owner and administrator of a website featuring content relating to the production and distribution of electronic books, had his website blocked as a consequence of a blocking order against another website, containing a collection of cannabis-themed stories, which had the same numerical network address (“IP address”) as his.

Law – Article 10: The blocking measure in question amounted to “interference by a public authority” with the right to receive and impart information. The statutory basis for the interference was section 15.1 of the Information Act. That provision defined the categories of illegal web content susceptible to be blocked and laid down a step-by-step procedure for putting a blocking order in place. Section 15.1 allowed the authorities to target an entire website without distinguishing between the legal and illegal content it might contain. However, the wholesale blocking of access to an entire website was an extreme measure which had been compared to banning a newspaper or television station. While the offending website had featured at least some arguably illegal content, the applicant’s website had not had any content falling within the scope of section 15.1. The applicant had in no way been affiliated with the owners of the offending website or responsible for the allegedly illegal content. The interference in issue could not therefore have been grounded on the provision that was supposed to have formed its legal basis.

The blocking of the applicant’s website had been an automatic consequence of the Russian telecoms regulator, Roskomnadzor’s, decision to add the IP address of the offending website to the register of blocked material. That decision had had the immediate effect of blocking access to an entire cluster of websites which had shared an IP address with the offending website. Section 15.1 of the Information Act conferred extensive powers on Roskomnadzor in the implementation of a blocking order issued in relation to a specific website. However, the law did not require it to check whether that address was used by more than one website or to establish the need for blocking by IP address. That manner of proceeding could, and did in the circumstances of the applicant’s case, have the practical effect of extending the scope of the blocking order far beyond the illegal content which had been originally targeted.

Shared hosting was a common and accessible hosting arrangement for small to medium-sized websites. However, owners of individual sites, such as the applicant, might not be aware of the contents of co-hosted websites, while the hosting service provider – in this case a company outside the Russian jurisdiction – was not bound by Russian authorities’ determination of illegal content. Whichever shared-hosting platform solution the applicant were to choose, he would incur the risk that the Russian authorities would declare illegal some content of co-hosted websites and that the owners of such websites and the hosting service provider would not heed their take down orders. Russian law did not require the applicant to control the content of co-hosted websites or the hosting service provider’s compliance with take-down orders. Yet, because of the great latitude the law afforded to Roskomnadzor in blocking matters, the applicant had had to bear the consequences of the authorities’ blocking decision merely on account of an incidental connection, at the infrastructure level, between his website and someone else’s illegal content. In such circumstances, the Court could not find that the law was sufficiently foreseeable in its effects and afforded the applicant the opportunity to regulate his conduct.

The exercise of powers to interfere with the right to impart information had to be clearly circumscribed to minimise the impact of such measures on the accessibility of the Internet. In the applicant’s case, Roskomnadzor had given effect to a decision by which a drug-control agency had determined the content of the offending website to be illegal. Both the original determination and Roskomnadzor’s implementing orders had been made without any advance notification to the parties whose rights and interests were likely to have been affected. The blocking measures had not been sanctioned by a court or other independent adjudicatory body providing a forum in which the interested parties could have been heard. Nor did the Russian law call for any impact assessment of the blocking measure prior to its implementation. Roskomnadzor was not legally required to identify the potential collateral effects of blocking an IP address, even though commonly used Internet tools could have promptly supplied a list of websites hosted on the same server.

As regards the transparency of blocking measures, Roskomnadzor provided a web service which enabled anyone to find out whether a website had been blocked and indicated the legal basis, the date and number of the blocking decision and the issuing body. It did not, however, give access to the text of the blocking decision, any indication of the reasons for the measure or information about avenues of appeal. Nor did Russian legislation make any provision for third-party notification of blocking decisions in circumstances where they have a collateral effect on the rights of other website owners. The applicant had no access to the blocking decision: it had not been produced in the domestic proceedings and the Russian courts had rejected his disclosure request.

Lastly, as regards the proceedings which the applicant had instituted to challenge the incidental effects of the blocking order, there was no indication that the judges considering his complaint had sought to weigh up the various interests at stake, in particular by assessing the need to block access to all websites sharing the same IP address. 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 their decision, the courts had confined their scrutiny to establishing that Roskomnadzor had acted in accordance with the letter of the law. However, 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, substantially restricted the rights of 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 blocking measures, such as those in issue in the applicant’s case. When exceptional circumstances justified the blocking of illegal content, a State agency making the blocking order had to ensure that the measure strictly targeted the illegal content and had no arbitrary or excessive effects, irrespective of the manner of its implementation. 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 owners of such websites.

In the light of its examination of the Russian legislation as applied in the applicant’s case, the Court concluded that the interference resulted from the application of the procedure under section 15.1 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 unanimously found 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 examined neither the lawfulness nor the proportionality of the effects of the blocking order on the applicant’s website.

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

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

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