Atakan Güngördü is a qualified attorney in Turkey, currently pursuing an Adv. LL.M. in European and International Human Rights Law at Leiden University.
On 23 June 2020, European Court of Human Rights (the “Strasbourg Court” or the “Court”) delivered no less than four judgments against Russia (OOO Flavus and Others v. Russia, Bulgakov v. Russia, Engels v. Russia, Vladimir Kharitonov v. Russia) all of which concern the blocking of access to websites. The Court held that Russian authorities had violated the applicants’ right to freedom of expression on the internet, as well as their right to an effective remedy in all four cases.
These four judgments come as an important victory for the protection of online free speech in Russia and set precedents for other Member States to adopt or amend internet laws in line with the Court’s standards.
Facts of the Cases
In OOO Flavus and Others, access to three opposition online media outlets owned by the applicants was blocked on the grounds that the websites contained ‘calls for extremist activities’. According to the Russian Prosecutor General, the two websites called for illegal protests in support of the defendants in the Bolotnaya case, and one website featured a pamphlet inciting Crimeans to commit unlawful actions. The blocking orders were carried out by Roskomnadzor (the state media watchdog in Russia) following the Prosecutor General’s request and targeted the domain names of the websites instead of specific offending URLs, resulting in a wholesale blocking of entire websites. Although the applicants applied for the judicial review of blocking orders, their complaints were rejected.
In Bulgakov, access to the applicant’s website was blocked on the grounds that it hosted one piece of unlawful material, an e-book which was categorized as an extremist publication. The blocking order was carried out by a local internet service provider (ISP) pursuant to a court decision which the applicant had not been aware of. The block was implemented on the IP address of the website, resulting in a wholesale blocking of access to the entire website. Although the applicant deleted the offending content as soon as he found out about the court decision, the block continued to be in place as the appeals court refused to lift the measure.
Engels concerned the blocking of access to the applicant’s website due to the information it hosted about filter-bypassing tools on the internet, such as virtual private networks (VPN), the Tor browser, and the Invisible Internet Project (I2P). The prosecutor submitted to the competent court that filter-bypassing tools enable users to access extremist material on the internet; thus, disseminating information about these tools should be prohibited. During domestic proceedings in which the local ISP stood as the defendant instead of the applicant, the domestic court declared the specific URL unlawful and ordered Roskomnadzor to block access to the applicant’s website. Before implementing the order, however, Roskomnadzor requested the applicant to take down the offending webpage; otherwise, the website would be blocked. Being left to choose between removing the offending webpage or having access to his entire website blocked, the applicant decided to comply with the request. The applicant lodged an appeal, but it was rejected in a summary fashion.
Lastly, in Vladimir Kharitonov, the applicant’s website was blocked as a collateral consequence of a blocking measure against another website. Although it did not contain any illegal material, the applicant’s website was blocked since it shared the same hosting company and IP address as the offending website through an arrangement of shared IP hosting. The domestic courts upheld Roskomnadzor’s action without giving any weight to the applicant’s argument that his website did not contain any illegal information.
In order to prevent excessive or arbitrary effects of blocking access to illegal content on the internet, the Court identified a number of legislative safeguards which were applied in all four cases. Any domestic law prescribing online access blocking measures should provide these safeguards in order to pass the ‘quality of law’ test under the European Convention on Human Rights (the “Convention”).
The first two safeguards identified by the Court, namely the safeguards against prior restraints and collateral effect, had already been addressed by the Court in its earlier judgments of Ahmet Yıldırım v. Turkey in 2012 and Cengiz and Others v. Turkey in 2015. Although, the Court has, for the first time, placed these two safeguards in a comprehensive framework, which will be explored below.
- Safeguards against prior restraints: Prior restraints refer to access blocking measures that have been taken before a judicial decision was given on the illegality of the content in question. The Convention does not rule out prior restraints on expressions, be it offline (see, Ekin Association v. France) or online (see, Ahmet Yıldırım v. Turkey), but only allows them in exceptional circumstances and calls for the most careful scrutiny. To this end, following its previous judgments, the Strasbourg Court reiterated in OOO Flavus that ‘in cases of prior restraints on the operation of media outlets such as the present one, a legal framework is required to ensure both tight control over the scope of bans and an effective Convention-compliant judicial review’.
- Safeguards against collateral effect: The collateral effect could occur through various forms of implementation of a blocking order, such as blocking access to the URL of an entire website (OOO Flavus and Others v. Russia), the domain that hosts many websites (Cengiz and Others v. Turkey), or the IP address that is used for shared hosting by several websites (Vladimir Kharitonov v. Russia). The Court has reiterated that the domestic law must require public authorities to strictly target the illegal content and, thus, avoid any collateral effects of the blocking measure.
- Procedural safeguards: To prevent arbitrary interferences with freedom of expression through online access blocking measures, the Court has enumerated a set of procedural safeguards. These safeguards include (i) advance notification of the blocking measures to the affected parties to ensure the involvement of the website owners in the blocking proceedings, (ii) authorities’ obligation to carry out an impact assessment of the blocking measures prior to their implementation or justify the urgency if an immediate implementation is necessary, (iii) giving the opportunity to websites owners to remove the illegal content, and (iv) providing a forum, such as a court or other independent adjudicatory body, for affected parties to be heard and to challenge the measure.
- Transparency: As part of the framework, the Court has established that the relevant domestic law must require the blocking measures to be transparent. Transparency of the measure entails that the blocking request, and the legal grounds thereof, must be communicated to the owners of the targeted website prior to the implementation of the measure. Moreover, once a blocking measure has been implemented, internet users must be able to find out whether the website has been blocked and access the relevant information which includes the legal basis for the blocking, the date and number of the blocking decision, the issuing body as well as the text of the blocking decision, including the reasons thereof, and the avenues of appeal.
- Balancing of all interests at stake: Finally, as a direct reflection of necessity and proportionality tests under the Convention, the relevant domestic law must require public authorities to balance all interests at stake. In this respect, public authorities must be legally obliged to assess whether the desired result can be achieved through less intrusive measures than blocking access to the entire website.
The Strasbourg Court concluded that the Russian law on website blocking did not provide these safeguards and produced arbitrary effects in all four cases.
In the early judgments of Ahmet Yıldırım v. Turkey and Cengiz and Others v. Turkey concerning blocking access to websites, the Strasbourg Court had focused on the lack of a legal basis and foreseeability of the measures without giving further guidance to the Member States as to how to establish domestic law and practice which complies with the Convention.
To Judge Lemmens’ regret, expressed in his concurring opinion in Cengiz and Others, the Strasbourg Court had ‘missed the opportunity’ to provide comprehensive standards in these early judgments. Within this context, the four cases against Russia provided the Court with a second chance to establish such standards on the topic and, this time, the opportunity was seized. Three points in particular that the Court made in these judgments carry significant weight.
First, the Court asserted that blocking access to entire websites is an extreme measure which is comparable to banning a newspaper or TV station (OOO Flavus and Others, para. 37). Through this, the Court has raised the required standards to block access to websites much higher than its earlier judgments. This entails that domestic authorities can block only the specific illegal content in a given website. If the scope of the blocking order extends to legal content on the website, it would constitute a violation of the Convention. Given that some Member States do not have the necessary technology to block specific pages in websites (see, Cengiz and Others, para. 23), the Court certainly does not leave much room for domestic authorities to maneuver.
Second, the Strasbourg Court recognized the content-neutral nature of internet filter-bypassing technologies. It rejected the Russian Government’s argument that such technologies are solely used for extremist purposes and compared them to the printing press. The Court concluded that just as a printing press can print anything from a school textbook to extremist material, internet filter-bypassing technologies can be used for both legitimate and illegitimate purposes. However, such tools are content-neutral and blocking information about these tools are no different than banning the use of printers because they may be used to print illegitimate material (Engels, para. 30). This is a momentous conclusion for the advancement of online free speech since such tools are often used by internet users in authoritarian regimes to access restricted information on the internet or anonymously express themselves on the internet without interferences by governments.
Finally, the Strasbourg Court has shed light on blocking access to shared IP addresses. It acknowledged that a website owner should not have to bear consequences of a blocking measure on another website that hosts illegal content only because the two websites have an infrastructural connection, namely a shared IP address (Vladimir Kharitonov, para. 42). The Court has confirmed that such a blocking measure is arbitrary and unforeseeable. This is particularly important since shared IP hosting is a common practice for small and medium-sized websites thanks to its affordability. As a consequence of this judgment, it is safe to say that domestic authorities would be violating the Convention in all instances of blocking access to a shared IP address, which requires them to either increase their technical capabilities to target only the illegal content or implement blocking orders through hosting service providers.
Even since the 2015 judgment of Cengiz and Others v. Turkey, which was the most recent Strasbourg Court judgment on blocking access to websites before the four Russian judgments, the significance of the internet as a medium and forum for freedom of expression has grown exponentially. Within this context, the four new judgments against Russia provide important and timely standards on this topic. It is particularly significant that the Court has, for the first time, referred to the blocking of entire websites as an extreme measure comparable to banning a newspaper or TV station and, also, acknowledged the content-neutral nature of filter-bypassing technologies and the arbitrariness of blocking shared IP addresses.
Taken together with the previous judgments of Ahmet Yıldırım v. Turkey, Cengiz and Others v. Turkey, and Kablis v. Russia, the Strasbourg Court has now provided national governments with a comprehensive set of standards on drafting Convention-compliant internet laws. With that said, considering the tightening grip of the authorities on the internet and social media platforms in countries like Turkey, Azerbaijan, and Russia, it will not be a surprise if the Court is ‘provided with more opportunities’ to further refine its standards as the internet technologies continue to transform societies.