JOINT CONCURRING OPINION OF JUDGES LEMMENS, DEDOV AND POLÁČKOVÁ

1. We fully concur with our esteemed colleagues in finding violations of Articles 10 and 13 of the Convention.

We would, however, have preferred a different reasoning under Article 10. Like our colleagues, we are of the opinion that the interference with the applicant’s right to freedom of expression was not “prescribed by law”. But unlike our colleagues, we believe that this is so because the interference had no basis in domestic law, not because the law did not satisfy the foreseeability requirement.

This issue is not a merely theoretical one. As we will try to explain, the approach adopted has a bearing on the kind of measures that will be required for proper execution of the present judgment.

2. The interference in this case was a blocking measure directed against the website “www.rastaman.tales.ru” (the “Rastaman Tales website”). The applicant’s website was a different one (www.digital-books.ru), but both websites were hosted on the same server and had the same IP address. When the Federal Drug Control Service asked Roskomnadzor to block access to the Rastaman Tales website, Roskomnadzor put the latter’s IP address on the register of blacklisted websites. The result was that access was blocked, not only to the Rastaman Tales website, but also to all other websites using the same IP address, including the applicant’s.

This is therefore a case of the unintended blocking of a website due to the method chosen to block another, specifically targeted, website.

3. The impugned measure was based on section 15.1, subsection 5(1), of the Information Act. According to this provision, a website can be blocked by a decision of a federal executive body (in this case the Federal Drug Control Service) if it contains materials listed in that provision (in this case information relating to the manufacture and the use of narcotics). Roskomnadzor is responsible for implementing such decisions.

It is clear that Roskomnadzor used a wholly inadequate method to block access to the Rastaman Tales website. The question is whether this was the result of section 15.1, subsection 5(1), being insufficiently foreseeable in its effects, or whether Roskomnadzor exceeded the limits of what was permissible under the law. In the first case, the law would not be of the required quality; in the second case, the interference would not have a basis in the law.

4. Our esteemed colleagues are of the opinion that the Information Act did not require Roskomnadzor to check whether the IP address was used by more than one website or to establish the need for blocking by IP address (see paragraph 41 of the judgment). They further argue that “because of the great latitude” the Act afforded to Roskomnadzor in blocking matters, making it possible for the latter to block a website merely on account of an incidental connection at the infrastructure level with another website, the law was not sufficiently foreseeable in its effects and did not afford the applicant the opportunity to regulate his conduct (see paragraph 42 of the judgment).

We respectfully disagree with this way of looking at the existing domestic legal framework.

5. In our opinion, the Information Act, and in particular section 15.1, subsection 5(1), defines in a sufficiently precise way the categories of information that are prohibited and to which therefore access can be blocked. We do not find that this provision gives “unfettered discretion” to the competent federal executive bodies.

It is true that the Act does not specify how Roskomnadzor should proceed when it receives a request to block a website. However, in our opinion it does not follow from the Convention that the manner of implementing a decision of an administrative authority should be regulated in detail by the legislature. This is all the more true when the implementation requires the taking of measures of a technical nature. To hold the contrary would lead to undesired over-regulation.

It was within Roskomnadzor’s discretion to choose the method for implementation of the Federal Drug Control Service’s request. Under the principle of the rule of law it was for Roskomnadzor to make sure that, whatever method was chosen, the scope of the blocking measure remained within the limits of what had been requested by the competent executive body.

Where the law grants discretion to an administrative authority, it is obvious that it does not allow that authority to exercise the power thus granted in a way that would violate the law. By using a method that had the effect of blocking the applicant’s website, although that website did not feature any illegal content and was not the object of the Federal Drug Control Service’s request, Roskomnadzor exercised its power in such a way that the blocking measure went beyond what was permissible under section 15.1, subsection 5(1), of the Information Act.

That means that the blocking measure applied by Roskomnadzor did not have a basis in domestic law.

6. We note that the domestic courts found that Roskomnadzor had acted within its competence and had implemented a decision that was compatible with the Information Act. In fact, they did not address the issue of the blocking measure’s impact on the applicant’s website (see paragraphs 8 and 12 of the judgment). They simply left open the question, which in our opinion is of decisive importance.

7. Our finding that the impugned measure did not have a basis in domestic law is sufficient to conclude that the measure was not “prescribed by law”.

8. We thus consider that it is in the first place Roskomnadzor that is responsible for the violation of the applicant’s rights, as it did not remain within the limits of the Information Act. We consider that the domestic courts too are responsible, as they failed to identify the unlawful nature of Roskomnadzor’s actions, failed to have regard to the criteria established in the Convention (see paragraph 45 of the judgment) and failed to restore lawfulness.

Our esteemed colleagues put the blame elsewhere. In their opinion it is the Information Act that is the source of the violation of the Convention. More precisely, it is because the Act is not sufficiently foreseeable as to its implementation that the interference in the present case is held not to be “prescribed by law”. We respectfully disagree. We consider that the Russian Information Act is not as such incompatible with the Convention. The content of section 15.1, subsection 5(1), is in fact very similar to that of acts regulating the same issue in other States of the Council of Europe (see the 2017 comparative study on blocking, filtering and take-down of illegal internet content, conducted by the Swiss Institute of Comparative Law on behalf of the Council of Europe and available at https://www.coe.int/en/web/freedom-expression/study-filtering-blocking-and-take-down-of-illegal-content-on-the-internet ). In the present case, it is the application of the Act that is problematic.

9. This brings us to the issue of execution of the present judgment.

The problem encountered by the applicant is by no means an isolated one. As is noted in the judgment, millions of websites have been blocked merely because they shared an IP address with some websites featuring illegal content (see paragraph 41 of the judgment). The problem, if not systemic, is in any event widespread.

In our opinion, it would have been sufficient to change the administrative practice (of Roskomnadzor) and the judicial practice (of the domestic courts). Reparation within the meaning of the Convention could have been achieved without the legislature having to intervene.

However, given that the judgment concludes that section 15.1, subsection 5(1), of the Information Act does not satisfy the foreseeability requirement under Article 10 of the Convention, the full execution of the judgment will now require an amendment to the Act. We can only hope that this will be done within a reasonable time.

We would like to stress, however, that Roskomnadzor and the courts should not wait until the act has been amended in order to change their own practices. The execution of the judgments of the Court is a matter for all the domestic authorities concerned (see, specifically with respect to the duty of the domestic courts “to ensure, in conformity with their constitutional order ..., the full effect of the Convention standards, as interpreted by the Court”, Fabris v. France [GC], no. 16574/08, § 75, ECHR 2013 (extracts)). Roskomnadzor and the courts can thus pave the way for a later amendment of the Information Act.

[1] Currently available, in Russian and English, at www.rastamantales.com Access to the website was not restricted in Russia as on the date of the judgment.