Avagyan v. Russia: Strasbourg’s Appetizer on Online Disinformation

By Babette De Naeyer
And so it begins: online disinformation measures have reached Strasbourg. A lot has already been written about the threats of, and possible regulatory responses to the current ‘infodemic’ and the broader challenges mis- and disinformation pose to our communication landscape. Concerns about how malicious actors exploit social media algorithms to spread so-called ‘fake news’ for political and/or financial gain have been widely discussed in academic literature and have prompted global and European legal reforms. But for all the academic attention online misinformation receives, it has seen very little courtroom action. At least in Europe, this has now changed with the European Court of Human Rights’ (ECtHR, the Court) ruling in Avagyan v. Russia (29 April 2025).

Facts

The applicant had an Instagram account to promote her nail salon. On 13 May 2020, she posted that there had been no reported cases of COVID-19 in her region and questioned the government’s lack of transparency about the pandemic. Another user responded, challenging her claims and insisting that confirmed infections did exist. The applicant replied, stating that people were afraid to speak out and alleging that there was a financial incentive to report COVID-19 as the cause of death (para. 5).

A few days later, the police charged her with the online dissemination of ‘untrue information’, an administrative offence under Article 13.15(9) of the Code of Administrative Offences (CAO, para. 6). She argued that her statements were based on publicly available information and thus were not ‘known to be untrue’ (para. 7). However, the justice of the peace did not agree and imposed a fine of approximately €390 (para. 9). When the decision was upheld on appeal (para. 11), it prompted her to bring the case to the ECtHR, claiming an Article 10 ECHR violation (para. 15).

Judgment

In Avagyan v. Russia, the Court applied the familiar three-step test to assess whether the interference with the applicant’s expression was justified.

On legality, the Court acknowledged a legal basis in domestic law (Article 13.15(9) CAO), but recalled that legality also encompasses the quality of the law, including its accessibility and foreseeability (para. 28). The Court stated it would evaluate these aspects further in its proportionality analysis.

Regarding legitimacy, the Court accepted the government’s stated goal of protecting public health and safety during the COVID-19 pandemic. It referred to prior judgments where it had accepted the protection of public health as a legitimate aim (para. 29), such as Vavřička and Others v. the Czech Republic (in the context of Article 8 ECHR) and Bielau v. Austria (in the context of Article 10 ECHR).

Proportionality, as usual, received the most attention. The Court highlighted the ‘unprecedented context of a public health emergency’, although restrictions to freedom of expression must still be ‘construed strictly’ (para. 30). Turning to the facts of the case, it emphasized that the applicant was no journalist or authoritative information source; contrasting this case with Bielau, where the applicant was a medical professional. The Court noted that the applicant did not attempt to provide ‘verified factual information’ and should thus not be held to the same standard as professional media (para. 31.).

The Court then turns to whether the domestic courts gave relevant and sufficient reasons for charging the applicant with the offence of ‘disseminating untrue information’ (Article 13.15(9) CAO). This provision requires proof that the ‘untrue information’ is: (a) ‘known to be untrue’; (b) socially significant; (c) presented ‘under the guise of reliable reports’; and (d) creates specific risks to public health, safety, or infrastructure. The Court viewed this as a high threshold meant to target only the most serious cases of disinformation (para. 32).

The Court then applied these legal criteria to the facts of the case. First, the Court criticized the domestic courts’ failure to assess the applicant’s intentions behind her online behavior. According to the domestic courts it had been up to the applicant to prove the veracity of her statements, promptly shifting the nature of the offence (para. 33). As for the second criterion, the Court held that the applicant’s comments reflected skepticism about COVID-19 reporting practices and the perceived lack of government transparency. It considered this definitely a matter of public interest, particularly during the early stages of COVID-19 when information was ‘still emerging and subject to rapid change’ (para. 34). Skipping the third criterion, the Court turned to the fourth and found no evidence of specific risks to public health. The Court gave special relevance to the Instagram account’s small follower base and the post’s low engagement, which had been swiftly contradicted by another user (para. 35). Taking all this into account, the Court was not convinced that the interference was based on relevant and sufficient reasons.

Finally, the Court expressed concern about the chilling effect of the fine, which could deter public discourse calling for greater government transparency during public health emergencies (paras. 37-38). It thus concluded there had been a violation of Article 10 ECHR.

Three judges issued a concurring opinion, criticizing the majority for implicitly endorsing the legitimacy of ‘fake news’ laws (para. 3), even if they are justified by the protection of public health (para. 4). They warned that states should not be allowed to act as ‘arbiters of “truth”’ (para. 1).

Commentary

1.    From Legal Theory to Legal Test

This is the first time the Court has had to address whether a state’s response to disinformation on social media can be considered a justifiable and proportionate interference with Article 10 ECHR. According to the Court’s Press Unit’s fact sheet on the Covid-19 health crisis, this case is the first of many similar to follow (see for example, the communicated cases of Jeremejevs v. Latvia and Petrova v. Bulgaria). This case law will be important to shape the legal debate on online disinformation that has been going on for almost a decade now. Since 2016, the term ‘fake news’ has become embedded in public discourse, gaining traction during the 2016 US election campaign and the Brexit referendum. Initial concerns centered on foreign interference in electoral processes, but the issue gained new dimensions when the pandemic struck. The WHO even coined the term ‘infodemic’ to describe the surge of false and misleading information surrounding the pandemic. In response, many European states – like Spain, France, Italy and Hungary – felt compelled to do something. Legal scholars soon followed, questioning whether that something was a justifiable restriction of freedom of expression (see here, here, and here).

Here, commentators often pointed out that there was no specific ECtHR case law (yet) on online disinformation, but that two previous cases could serve as potential foundations for new doctrine: Salov v. Ukraine(2004) and Brzeziński v. Poland (2019). Both cases centred around the spread of falsehoods during election campaigns. Yet, many scholars were curious to see how the Court would respond to state action against disinformation in the unique context of a pandemic.

In Avagyan v. Russia, the Court did not mention Salov or Brzeziński,  but instead turned to two public health-related precedents. The first was Vavřička and Others v. the Czech Republic [GC] (see analysis here), in which parents (unsuccessfully) alleged a violation of Article 8 ECHR after their unvaccinated children were denied access to pre-school. While this case addresses a very different context than online disinformation, it is valuable in establishing public health as a legitimate ground for limiting fundamental rights.

The second, and more directly relevant, case cited by the Court was Bielau v. Austria, where a doctor received a suspended disciplinary fine for having an anti-vax blog post on his professional website in support of homeopathy. Contrary to Avagyan, the Court found no violation of Article 10 ECHR in Bielau. This differential treatment was justified according to the Court by the different status of both speakers: Bielau involved a medical professional who ought to have known better, while Avagyan was merely a lay social media user.

However, there are other notable differences between Bielau and Avagyan. First, the context in which ‘false information’ was spread was fundamentally different. Bielau concerned events from 2016 – well before the pandemic – and questioned the effectiveness of vaccines in general. The Court, citing the WHO, mentioned the ‘overwhelming evidence [of] the benefits of immunisation’ and the European consensus in favour of vaccination (Bielau, para. 44). This is a fundamentally different context from Avagyan, which involved a new virus during an ongoing global crisis, marked by uncertainty and evolving science. It was a period in which medical advice was quick to change: remember how medical masks went from ‘Don’t-Wear To Must-Haves’? Or how back in 2020,  claiming that COVID-19 came from a lab made you a conspiracy theorists, whereas nowadays it is considered a more plausible hypothesis? In the absence of established facts, there should be more room for speculation and error (see Guide to Article 10 ECHR, 41-44).

Second, it is particularly noteworthy that Bielau’s reasoning did not use terms such as ‘misinformation’, ‘disinformation’, ‘fake news’, or even the less loaded ‘false information’. This made the Bielau judgment fly under the radar of even the most hawk-eyed scholars scanning the HUDOC-database for emerging misinformation jurisprudence. In contrast, Avagyan’s judgement and concurring opinion do employ terminology like ‘disinformation’, ‘untrue information’, and ‘fake news’ – terms that will likely become standard in the COVID-19-related misinformation cases to come. But it is interesting to note that it was a Russian case that kicked off the Court’s new online disinformation doctrine.

2.    From Russian Troll Farms to Russian Lab Rats

As observed by Dothan (2011, 117), the Court tends to test new doctrines on low-reputation states, allowing novel reasoning to gain legitimacy before applying it to higher-reputation states. This lowers the risk of non-compliance by a high-reputation state which would in turn lower the Court’s reputation as supreme fundamental rights protector. Of course, no Contracting Party has a lower reputation than Russia, long known for its poor track record of executing ECtHR judgments. This has only deteriorated since Russia’s expulsion from the Council of Europe in 2022 (see here).

Although Ms. Avagyan was awarded approximately €12,500 in just satisfaction (para. 43), it is highly unlikely she will ever see this money appearing in her bank account. Her uncollected debt will likely be added to the ever-growing billion-euro backlog against Russia. While this is undoubtedly frustrating for applicants, lack of compliance makes Russian cases a useful testing ground for the Court. In the Russian laboratory, the Court can more freely experiment with new reasoning or doctrine without risking lowering its reputation due to non-compliance by the Contracting Party, since Russian execution is already off the table. It’s also possible the Court intentionally began with a Russian case to see how current Contracting Parties respond: do they accept or criticize the Court’s new doctrine?

States’ reaction will be important, as similar cases are going to reach the Court soon. As the concurring opinion showed, not all judges agreed with Avagyan v. Russia’s reasoning. Will the future Court heed the warning raised by the minority judges – echoing Orwell’s warning against state censorship – and not allow governments to penalize the dissemination of harmful lies? Avagyan seems to point in a different direction as it leaves the door open for future legitimacy of disinformation laws. Indeed, the Court did not consider the Russian offence of ‘wilful dissemination of untrue information’ to be lacking legal quality. Rather, it criticized the domestic courts’ inappropriate application of the offence’s criteria.

Thus, future Article 10 ECHR challenges to domestic laws targeting disinformation may fail, provided the law targets ‘only the most serious cases of disinformation’ (Avagyan, para. 32) and national courts have applied this carefully. It will be interesting to observe how the Court further refines these simultaneously legal and judicial standards in upcoming cases. This future case law will undoubtedly shape the evolving legal landscape of misinformation regulation across Europe.

3.    From Viral Disease to Viral Deceit

There is currently a scholarly debate going on regarding the scale and impact of misinformation. Some scholars argue that the issue has been exaggerated and advocate a ‘keep calm and carry on’ approach, suggesting that we should instead address the root causes – such as populism and polarization – of which misinformation is merely a symptom. Others, however, contend that we are living in a ‘post-truth era’, where misinformation poses a major threat – perhaps even our greatest short-term risk – to democracy. Much attention has been given to the role of social media, which has enabled misinformation to spread more widely and rapidly than ever before. Judging by the surge in legislative proposals aimed at protecting information integrity, the latter view currently appears to be on the winning side.

Although COVID-19’s ‘infodemic’ brought widespread attention to the phenomenon of misinformation, the issue extends far beyond public health. A particularly serious concern is the use of false information during election campaigns to sway voters. Even more alarming is the trend of far-right leaders questioning the legitimacy of election results after defeat, prompting judicial responses in their respective countries, as happened in Brazil and the US. With populist parties gaining ground across Europe, similar events could eventually reach Strasbourg.

Beyond election-related contexts, misinformation often targets vulnerable groups such as immigrants and the transgender community, deepening societal divisions and inciting fear. In some instances, domestic courts have responded by sanctioning politicians who use such rhetoric to incite their base. The ECtHR has affirmed that politicians have a special responsibility in how they communicate, and should refrain from making statements likely to foster intolerance (Erbakan v. Turkey, 2006, para. 64; Sanchez v. France, 2023, para. 150).

However, not all forms of misinformation can be classified as hate speech or incitement. Could a well-developed doctrine on misinformation provide the Court with an opportunity to hold governments and political actors accountable for using disinformation to shape their narrative and push their policies? Or will the Court rather prioritize the wide protection of political speech, given its fundamental role in democratic discourse?

Conclusion

These reflections offer food for thought, but the Court’s table has only just been set. Avagyan v. Russia has been a tasteful appetizer: a preliminary, thought-provoking dish in what promises to be a complex, multi-course meal of social media, disinformation and freedom of expression case law. Avagyan already seems to provide some of the key ingredients: the Court has opted to season this case with deliberate caution, with the concurring opinion adding a dash of skepticism. This divergence underscores the ongoing regulatory and judicial ponderation that is taking place between protecting information integrity and safeguarding freedom of expression.

With similar cases in the oven, Strasbourg will likely continue to refine its menu on online disinformation. It remains to be seen whether the next course will reinforce or revise the standards introduced in Avagyan v. Russia. But one thing is clear: the Court has begun cooking up a jurisprudential recipe on online disinformation and observers would do well to stay seated and dig in.