DISSENTING OPINION OF JUDGE KJØLBRO

1 . In the present case, the Court has found that the Estonian authorities ’ refusal to grant the applicant, a prisoner serving a life sentence, access to three specific webpages on the Internet violates the applicant ’ s right to receive information as protected by Article 10 of the Convention. I respectfully disagree.

2 . I share the majority ’ s view that the refusal to grant the applicant access to the three webpages amount to an interference with the applicant ’ s right to receive information as protected by Article 10 of the Convention (see paragraph 45 of the judgment). However, I do not find it decisive for the assessment of the existence of an interference that access to certain sites containing legal information is already granted under Estonian law (section 31-1 of the Imprisonment Act). In my view, refusal to grant access to the Internet, thus rendering access to specific information either impossible or more difficult, will in general amount to an interference with the right to receive information (see Ahmet Yıldırım v. Turkey , no. 3111/10, §§ 47-56, ECHR 2012; Akdeniz v. Turkey (dec.), no. 20877/10, §§ 18-29, 11 March 2014; and Cengiz and Others v. Turkey , nos. 48226/10 and 14027/11, §§ 47-58, 1 December 2015). Therefore, it is sufficient for me that prisoners in Estonia are, with a few exceptions, generally prohibited from using the Internet.

3 . I also share the view of the majority that the interference was prescribed by law and pursued legitimate aims (see paragraphs 46-47). However, I respectfully disagree with the majority that the interference was not “necessary in a democratic society” as required by Article 10 of the Convention.

4 . The question of prisoners ’ right to access to the Internet, in general or in some restricted form, is a novel issue in the Court ’ s case-law, and in the present case the Court has for the first time stated that denying a prisoner access to the Internet may amount to a violation of Article 10 of the Convention. In my view, the majority fails to take sufficient account of the fact that the applicant is a prisoner serving a life sentence in a closed prison.

5 . In general, prisoners continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention, save for the right to liberty (see, for example, Yankov v. Bulgaria , no. 39084/97, §§ 126-45, ECHR 2003 ‑ XII (extracts), and Donaldson v. United Kingdom (dec.), no. 56975/09, § 18, 25 January 2011). That being said, the Court has in a number of cases found that justification for restrictions on prisoners ’ rights under the Convention may be found in the considerations of security, in particular the prevention of crime and disorder, which inevitably flow from the circumstances of imprisonment (see Donaldson v. United Kingdom (dec.), cited above, § 18).

6 . In order to justify the interference, the domestic authorities relied on the risk of misuse of access to the Internet as well as the inherent security risks. In my view, it goes without saying that the purpose of serving a prison sentence and of preventing crime are very important in the context of prisoners ’ access to means of communication, including access to the Internet. To grant prisoners access to the Internet, be it in general or in some restricted form, inevitably imposes a risk of misuse and gives rise to security risks. Therefore, the question is whether the restriction on the applicant ’ s access to three specific webpages was justified in the specific circumstances of the case.

7 . The majority attach significance to the fact that prisoners in Estonia are already granted limited access to the Internet (see paragraphs 49 and 53 of the judgment). In deciding its policy on the matter, the Estonian legislature has sought to balance the competing interests of prisoners against the interests of society, namely prisoners ’ right to access to information about legislation and judicial decisions against the risk of misuse and risk to security. In doing so, the Estonian legislature has decided to grant prisoners limited access to the Internet. In my view, it should not be held against the Respondent Government that Estonia, in the interest of prisoners, has decided to provide prisoners with limited access to the Internet. Doing so may in practice discourage other States from taking a similar step, if providing access to certain webpages on the Internet may be used as an argument for granting access to other webpages too.

8 . The majority also attaches importance to the content of the three webpages to which the applicant requested access, as well as to the importance and relevance of the information for the applicant (see paragraph 50 of the judgment). However, the domestic authorities ’ refusal was not based on an assessment of the nature and content of the webpages in question, but on a general assessment, made by the legislature when adopting section 31-1 of the Imprisonment Act, of the risk of misuse and risks for security if prisoners are granted access to the Internet. In my view, the Court has no basis for calling into question the assessment of the domestic authorities according to which granting – further – access to the Internet would increase the risk of misuse and risks to security.

9 . The majority also attaches importance to a number of Council of Europe and other international instruments concerning the importance of the Internet (see paragraph 52 of the judgment). The Internet, including access to the Internet, is unquestionably very important for the individual in contemporary society, but I cannot but notice that none of the international instruments mentioned in the judgment (see paragraphs 22-25 of the judgment) concern prisoners ’ access to the Internet. Thus, the international instruments cited underline only the general importance of the Internet, but do not support an interpretation of Article 10 of the Convention according to which prisoners should be granted access to the Internet, either in general or in some restricted form.

10 . It is also a cause of concern to me that the judgment includes no information on comparative law and practice. To my knowledge, in many European as well as other countries prisoners serving sentences in closed institutions are, for security reasons and due to the risk of misuse, not granted access to the Internet, and if they are granted such access, it is done to a limited degree and under adequate control and restrictions. Thus, the information provided in the judgment does not establish a sufficient basis for stating that there is a European consensus according to which prisoners serving sentences in closed institutions are granted access to the Internet, be this in general or in some restricted form.

11 . In my view, the risk of misuse and the inherent security risks are so significant that the Court should be careful not to impose an obligation on States to grant prisoners ’ access to the Internet, as granting access will inevitably necessitate adoption of control measures and have practical and financial implications for the Member States. In theory, it will always be possible to implement the necessary monitoring, but the burden and the costs for the State may be excessive.

12 . In the assessment of proportionality it is, in my view, important that the information on the three webpages to which the applicant sought to have access was available to the applicant by other means (see paragraph 17 of the judgment), even though access to the information would most probably be more difficult without access to the webpages in question.

13 . The judgment concerns the applicant ’ s request to have access to three specific webpages, but the reasoning in the judgment will be equally applicable if – or when – the applicant, encouraged by the judgment, decides in the future to request access to other webpages or if other prisoners, inspired by the judgment, decide to request access to other webpages and can demonstrate the relevance and necessity of access to the information provided on the webpages. Thus, in practical terms, the judgment is close to recognising a right of prisoners to access to relevant webpages on the Internet. This significant step is taken without sufficient support in international instruments concerning prisoners and without an assessment of European law and practice.

14 . Having regard to the inherent risks concerning misuse and security, the technical and financial burdens imposed on Member States if prisoners are to be granted access to the Internet, the lack of information about European law and practice as well as the lack of support in international instruments on prisoners ’ rights, the State should, in my view, be granted a wide margin of appreciation. Therefore, even though I fully subscribe to the general importance of the Internet for the individual in contemporary society, there is, in my view, insufficient basis for finding a violation of Article 10 of the Convention.

15 . Having regard to the novelty of the legal question raised by the application, the general importance of prisoners ’ access to the Internet as well as the practical and financial implications of granting prisoners access to the Internet, the question should, in my view, not have been decided by a Chamber, but by the Grand Chamber (Article 30 of the Convention).