Communicated on 15 June 2020
Published on 6 July 2020
THIRD SECTION
Application no. 48932/19
OOO ZHIVAYA FOTOGRAFIYA
against Russia
lodged on 6 September 2019
STATEMENT OF FACTS
1. The applicant company, OOO Zhivaya Fotografiya, is a limited-liability company incorporated under Russian law in 2016 in Togliatti in the Samara Region. It is represented before the Court by its director general, Ms V. Poltorakova, and Mr D. Bukharin, a lawyer practising in Moscow.
2. The facts of the case, as submitted by the applicant company, may be summarised as follows.
3. In January 2018, the applicant company launched an online poster printing service on its website, Posters & Legends, accessible at posterslegends.com. The website was hosted on the shared web hosting service DigitalOcean with the Internet-protocol (IP) address 165.227.220.55. By April 2018, the website generated monthly revenue of up to 1,500 euros.
4. On 13 April 2018 the Taganskiy District Court in Moscow ordered, with immediate effect, the blocking of the instant messaging application Telegram, for failure to provide the State authorities with technical data facilitating access to encrypted communications. On 16 April 2018 a deputy Prosecutor General requested the telecoms regulator Roskomnadzor to block access to particular channels on the platform of the Telegram messenger on the grounds that they contained “texts and videos promoting or justifying the activities of the Islamic State of Iraq and the Levant, Jabhat al-Nusra, Jabhat Fatah al-Sham, Ahrar al-Sham and other illegal armed formations in the Syrian Arab Republic”. He also requested Roskomnadzor to block “filter-bypassing services” which enabled users to access such content, and any future “mirrors” or copies of that content.
5. Within one week of those decisions, Roskomnadzor blocked access to approximately 20,000,000 IP addresses, including those of major cloud services such as Google, Amazon Web Services, DigitalOcean, Microsoft and Hetzner, which the Telegram messenger allegedly used for circumventing the blocking measures. As a consequence, access to thousands of websites, online ticketing systems, SmartTV applications, smart fitness trackers, online shops, online games and payment services was interrupted.
6. On 19 April 2018 users notified the applicant company that they were unable to access its website. On checking the Integrated Register of blocked content operated by Roskomnadzor, it discovered that the IP address of its website had been added to the blocking list on the basis of the Prosecutor General’s request of 16 April.
7. The applicant company brought proceedings before the Taganskiy District Court, seeking a declaration that the Prosecutor General and Roskomnadzor had unlawfully added its website’s IP address 165.227.220.55 to the blocking list. It sought substantive relief requiring Roskomnadzor to remove the website’s IP address from the blocking list and restoring access to the website. The company submitted that the authorities had had no legal grounds to block access to the website which had not contained any illegal content. Neither the website owner nor the hosting service provider had been notified of the blocking decision or required to act on it. Roskomnadzor’s decision to block a multitude of IP addresses had been excessive and arbitrary and had disrupted the applicant company’s business.
8. In their defence, Roskomnadzor submitted a document showing that on 18 April 2018 it had recorded the Telegram messenger using three IP addresses owned by the DigitalOcean hosting service provider (165.227.172.237, 165.227.78.220, 165.227.159.47). On that ground, it decided to block the entire subset of DigitalOcean’s IP addresses 165.227.0.0/16, that is to say, all 65,536[1] IP addresses starting with “165.227”, including that of the applicant company’s website.
9. The Prosecutor General’s office submitted that it had never requested to block access to the IP address of the applicant company’s website.
10. On 6 August 2018 the Taganskiy District Court dismissed the applicant company’s claim. Referring to Roskomnadzor’s and the Prosecutor General’s submissions, it held that there had been no violation of the applicant company’s rights because the authorities had acted within their jurisdiction and complied with the established procedure.
11. On 20 December 2018 the Moscow City Court dismissed the appeal. The fact that the applicant company’s website had not featured any illegal content was, in the City Court’s view, immaterial because the same IP address could be used by multiple users.
12. On 30 April and 14 June 2019 the City Court and the Supreme Court of the Russian Federation, respectively, refused the applicant company leave to appeal to the cassation instance, finding that courts were not competent to review the actions of State authorities undertaken within their competence.
13. The IP address of the applicant company’s website has remained blocked. The applicant company was forced to take down the online shop and wind up that business.
COMPLAINTS
14. The applicant company complains under Articles 10 and 13 of the Convention of the collateral blocking of its website, an excessive discretion of the telecoms regulation in the matter of implementation of blocking measures, a lack of notification of blocking decisions to the collaterally affected websites, unforeseeability and excessive breadth of blocking measures, a failure to carry out an impact assessment prior to implementing them, and a formal and superficial review of the matter by the domestic courts.
QUESTIONS TO THE PARTIES
1. Has there been a violation of Article 10 of the Convention on account of blocking of access to the IP address of the applicant company’s website? In particular, were the relevant provisions of the Information Act sufficiently foreseeable in their effects? Did they give Roskomnadzor discretion to choose the method of blocking of access to the website? Did Roskmonadzor exceed the limits of what was permissible under the law?
2. Has there been a violation of Article 13 of the Convention, taken in conjunction with Article 10, on account of the domestic courts’ refusal to carry out a substantive review of the effect which the blocking measures had on the applicant company’s website?
[1] Each element of an IP address has the size of a byte and can take a value ranging from 0 to 255. Two final elements give a total of 256 x 256 = 65,536 possible combinations.
Full & Egal Universal Law Academy