Communicated on 30 August 2017
THIRD SECTION
Application no. 12468/15
OOO FLAVUS against Russia
and 4 other applications
(see list appended)
STATEMENT OF FACTS
1. Details of the applications are set out in the appendix. The facts of the cases, as submitted by the applicants, may be summarised as follows.
A. Blocking of the G, Eg.ru and K websites (applications nos. 12468/15, 23489/15 and 19074/16)
2. In December 2013 the Information Act (Law no. 149-FZ of 27 July 2006) was amended to grant the Prosecutor General the authority to block access to websites containing “calls for mass disorders, extremist activities, participation in unauthorised mass gatherings” (section 15.3 as amended by Law no. 398-FZ). A court order was not required; the Prosecutor General submitted the blocking order directly to Roskomnadzor, the telecoms regulator, which in turn sent a notice to the hosting provider of the offending website identifying the information or webpage to be deleted. The hosting provider immediately blocked access to the webpage and within twenty-four hours notified its owner. After the regulator ascertained that the offending information or webpage had been deleted, access could be restored.
3. On 13 March 2014 the Prosecutor General issued an order to block access to three major opposition websites – G, a news and opinion site registered as a mass-media and owned by the applicant company OOO Flavus; Eg.ru, the Ezhednevniy Zhurnal online newspaper owned by the applicant company OOO Mediafokus, and K, the website of an opposition politician, the applicant Mr Garri Kasparov. The order was reasoned as follows:
“An examination of the information published on the pages of the said websites revealed a uniform thematic trend towards the coverage of public events of an unlawful nature in the Russian territory.
In particular, the Ezhednevniy Zhurnal website () has a subsection ‘Bolotnaya case’[1] that publishes and accumulates articles and publications about the protests held in the Russian territory in support of the defendants in the criminal proceedings relating to mass disorders in the Bolotnaya Square in Moscow on [6] May 2012. It follows from the contents of the publications ... that illegal protests ... are an acceptable and necessary form of expression of one’s civic position and [such publications] are essentially a call to participation in such events.
Furthermore, the publication “Participants of a gathering in support of the Bolotnaya victims arrested [in the centre of Moscow]” was found on the www.g website. The article describes the arrest of participants of an unauthorised public event ‘Strategy 6’ which involves public performances by a group of individuals on the sixth day of every month in support of the defendants in the criminal case concerning mass disorders in Moscow on 6 May 2012. Unlawful actions by the event participants are represented as being acceptable, with a view to attracting attention to the criminal case and calling for participation in similar actions.
The www.k webpage features the publication ‘Property of the [Ukrainian] State to be nationalised in the Crimea’ which shows a pamphlet with a drawing of an armed man, the title ‘Red Guerrilla Fighters’ and the text ‘Wake up, Crimea! Occupants and their minions brazenly steal your money and disfigure your towns. Do not be silent! Do not surrender!’ Those calls are addressed to the Crimean residents to incite them to commit unlawful actions.”
4. On the following day the Roskomnadzor blocked access to the applicants’ websites and sent their providers a notice requiring them to delete the offending information. The notice listed the root address of the websites without specifying what pages were considered problematic. A copy of the Prosecutor General’s blocking order was not provided to the applicants who first took cognisance of its contents in the subsequent judicial proceedings.
5. The applicants applied for a judicial review of the blocking order. They submitted that the indiscriminate blocking of access to the entire website, without giving notice of the specific offending publications, was in breach of the established procedure in so far as it prevented the applicants from restoring access to their websites by removing the offending material. They claimed that the indiscriminate blocking substantially restricted their right to impart information which was not declared unlawful.
6. On 6 May and 29 August 2014 the Taganskiy District Court and on 6 August 2014 the Khamovnicheskiy District Court in Moscow rejected the applicants’ complaints. The courts held that a competent official of the Prosecutor General’s office had carried out an assessment of the websites and determined their unlawful character, that the telecoms regulator had lawfully given effect to the Prosecutor General’s blocking order and that the regulator’s notice had given adequate information about the offending webpages. The courts concluded that the blocking order had had no effect on the applicants’ rights or freedoms.
7. On 2 September and 28 October 2014 and 25 April 2015 the Moscow City Court dismissed the appeals in a summary fashion, finding that the District Courts’ judgments were essentially correct. On 2 November 2015 the Moscow City Court disallowed the cassation appeal filed by the applicant company OOO Mediafokus.
8. The K website replaced the presumably offending picture with a neutral one and repeatedly asked the Roskomnadzor to stop blocking access but received no response.
B. Blocking of Mr Bulgakov’s website (application no. 20159/15)
9. The applicant, Mr Bulgakov, is the owner of the website “Worldview of the Russian Civilization”. In November 2013 he discovered that the hosting provider had blocked access to the website on the basis of the judgment by the Kirovskiy District Court in Rostov-on-Don dated 3 April 2012.
10. It transpired that the 2012 judgment had been given on an application by the Rostov prosecutor who had asked the court to issue a blocking order in respect of a number of materials on various websites, including the electronic version of a certain book (“the e-book”) on Mr Bulgakov’s website which had been declared to be an extremist publication in 2008. The District Court held that the access to the e-book, among others, should be restricted “by adding filter rules for the IP address of the website to the area border router”, that is to say, by way of blocking access to the entire website at the provider level using its numerical (IP) address.
11. Mr Bulgakov immediately deleted the offending e-book and brought a claim against the hosting provider, seeking to restore access to his website. On 25 March 2014 the Savelovskiy District Court in Moscow granted the claim, noting that the extremist material had been removed. That decision was overturned on appeal: on 14 August 2014 the Moscow City Court held that the Kirovskiy District Court’s judgment had required the provider “to block access to the IP address of the website rather than to a specific page of the website” and that granting of Mr Bulgakov’s claim would be contrary to the terms of that judgment. On 5 December 2014 and 5 May 2015 the City Court and the Supreme Court, respectively, rejected cassation appeals against that decision.
12. Mr Bulgakov asked the Kirovskiy District Court to fix a new time‑limit for filing an appeal against the 2012 judgment. On 9 December 2014 his request was granted. Referring to the Constitutional Court’s position (Judgment no. 1-P of 20 February 2006), the District Court held that the proceedings could not be considered fair if the judgment determined the rights and obligations of, or imposed new restrictions on, persons who had not taken part in the proceedings.
13. The appeal filed by Mr Bulgakov pointed out that, having been unaware of the original proceedings, he could not defend his rights, and that in the meantime the offending e-book had been removed. He enclosed evidence to that effect.
14. On 29 January 2015 the Rostov Regional Court considered and rejected his appeal. It found that the 2012 judgment could not be set aside on the ground that Mr Bulgakov had not been able to join the proceedings because the prosecutor had lodged a claim against the internet provider rather than against Mr Bulgakov. Without analysing the material submitted by Mr Bulgakov, the court held that there was no evidence that the offending e-book had been removed. On 15 June and 5 October 2015 the Regional Court and the Supreme Court, respectively, rejected cassation appeals against that decision.
C. Blocking of a section of the RosKomSvoboda website (application no. 61919/16)
15. The applicant, Mr Engels, is a Russian-born German politician and activist working to support freedom of expression in the internet. On 1 November 2012 he founded, together with local Russian activists, the RosKomSvoboda website () whose name is an abbreviated expression “Russian Committee [for] Freedom” alluding to the name of the Russian telecoms regulator Roskomnadzor (“Russian Committee [for] Oversight”) responsible for maintaining the blacklist of banned websites.
16. One of the sections of the RosKomSvoboda website (/bypass) featured information about tools and software enabling users to browse internet without restrictions, such as virtual private networks, the Tor browser, the I2P technology, the turbo mode and online translators.
17. On 13 April 2015 the Anapa Town Court, on an application by the Anapa prosecutor and without informing the applicant about the proceedings, issued a blocking order of the /bypass section on the ground that it allowed users “to obtain full access to all the blocked websites, including those that contained the materials included into the Federal List of Extremist Materials”.
18. Counsel for Mr Engels filed an appeal. He pointed out that his full contact details were listed on the website and that the examination of the prosecutor’s claim in his absence breached the principle of fairness. He also submitted that providing information about tools and software for the protection of the privacy of browsing was not contrary to any Russian law.
19. On 29 September 2015 the Krasnodar Regional Court rejected the appeal in a summary fashion. On 12 April 2016 the Regional Court refused to consider the cassation appeal.
RELEVANT INTERNATIONAL MATERIAL
20. Joint declaration on freedom of expression and the Internet, adopted on 1 June 2011 by the United Nations (UN) Special Rapporteur on Freedom of Opinion and Expression, the Organization for Security and Co-operation in Europe (OSCE) Representative on Freedom of the Media, the Organization of American States (OAS) Special Rapporteur on Freedom of Expression and the African Commission on Human and Peoples’ Rights (ACHPR) Special Rapporteur on Freedom of Expression and Access to Information, provides in particular -
1. General Principles
“a. Freedom of expression applies to the Internet, as it does to all means of communication. Restrictions on freedom of expression on the Internet are only acceptable if they comply with established international standards, including that they are provided for by law, and that they are necessary to protect an interest which is recognised under international law (the ‘three-part’ test).
...
d. Greater attention should be given to developing alternative, tailored approaches, which are adapted to the unique characteristics of the Internet, for responding to illegal content, while recognising that no special content restrictions should be established for material disseminated over the Internet.”
3. Filtering and Blocking
“a. Mandatory blocking of entire websites, IP addresses, ports, network protocols or types of uses (such as social networking) is an extreme measure – analogous to banning a newspaper or broadcaster – which can only be justified in accordance with international standards, for example where necessary to protect children against sexual abuse.”
21. Article 19 of the International Covenant on Civil and Political Rights provides as follows:
“1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.”
22. General Comment No. 34 on Article 19, adopted at the 102nd session (11-29 July 2011) of the United Nations Human Rights Committee, states as follows:
“43. Any restrictions on the operation of websites, blogs or any other Internet-based, electronic or other such information-dissemination system, including systems to support such communication, such as Internet service providers or search engines, are only permissible to the extent that they are compatible with paragraph 3. Permissible restrictions generally should be content-specific; generic bans on the operation of certain sites and systems are not compatible with paragraph 3. It is also inconsistent with paragraph 3 to prohibit a site or an information-dissemination system from publishing material solely on the basis that it may be critical of the government or the political social system espoused by the government.”
COMPLAINTS
23. All the applicants complain under Article 10 of the Convention about indiscriminate and unwarranted blocking of the contents of their websites.
24. The applicants Mr Bulgakov and Mr Engels also complain under Article 13 of the Convention, taken in conjunction with Article 10, that the Russian courts issued blocking orders in their absence, that they could not obtain a substantive review of those decisions and, in case of Mr Bulgakov, that the courts disregarded the fact that the offending information had been removed.
QUESTIONS TO THE PARTIES
1. As regards the blocking of access to the applicants’ website or section thereof, was there a violation of Article 10 of the Convention? In particular, do the relevant laws and regulations meet the “quality of law” requirements and are they sufficiently precise and foreseeable in their application? Do they make a provision for a wholesale blocking of access to the entire website on the ground that it contained some offending material? Do they afford a sufficient degree of protection against arbitrariness and require the executive authorities (Prosecutor General or Roskomnadzor) and the courts to consider the various interests at stake and the collateral effect that a blocking decision may have on the material which has not been found to be illegal?
2. Did the applicants have at their disposal an effective remedy, enabling them to take part in the proceedings, to have their arguments examined by the courts, and to have a substantive and meaningful judicial review of the collateral effects of the impugned measure, as required by Article 13 of the Convention, taken in conjunction with Article 10?
Appendix
No.
Application no.
Lodged on
Applicant
Date of birth
Place of residence
Represented by
12468/15
02/03/2015
OOO FLAVUS
Moscow
Mr D. Gaynutdinov
Moscow
20159/15
13/04/2015
Yevgeniy Vladimirovich BULGAKOV
01/08/1978
Bryansk
23489/15
24/04/2015
Garri Kimovich KASPAROV
13/04/1963
Moscow
Mr D. Gaynutdinov
Moscow
19074/16
25/03/2016
OOO MEDIAFOKUS
Moscow
Ms S. Kuzevanova
Voronezh
61919/16
11/10/2016
Grégory ENGELS
01/11/1976
Offenbach, Germany
Mr S. Darbinyan
Moscow
[1]. For details of the Bolotnaya case, see Frumkin v. Russia, no. 74568/12, ECHR 2016 (extracts).
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