Communicated on 1 September 2020
Published on 21 September 2020
THIRD SECTION
Application no. 4945/20
PRIVATE NETWORKS LP
against Russia
lodged on 11 January 2020
STATEMENT OF FACTS
1. The applicant company, Private Networks LP, is a limited partnership formed under the laws of Scotland, United Kingdom, in 2017 with the registered office in Edinburgh. It is represented before the Court by Mr V. Zdolnikov, a person having control of the applicant company, and Mr S. Darbinyan, a lawyer practising in Moscow.
2. The facts of the case, as submitted by the applicant company, may be summarised as follows.
3. The applicant company’s website “TgVPN” (www.tgvpn.com) provides access to a virtual private network (VPN) technology which enables users to establish a secure encrypted connection channel between their computers and remote servers. TgVPN is a service for the protection of private communications, bypassing content filters and anonymous browsing of the Internet. A Telegram “bot” – an auto-responder software service agent on the platform of the Telegram messenger – guides users who wish to perform a step-by-step setup of the VPN connection. The applicant company is not affiliated with, or connected to, the owners of the Telegram messenger.
4. On 13 April 2018 the Taganskiy District Court in Moscow issued, with immediate effect, an order to block the instant messaging application Telegram, for failure to provide the State authorities with technical means for accessing encrypted communications. On 16 April 2018 a deputy Prosecutor General requested the telecoms regulator Roskomnadzor to block access to particular information 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 particular “filter-bypassing services” which enabled users to access such content, and any future “mirrors” or copies of that content. 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.
5. In May 2018, the hosting service providers notified the applicant company that Roskomnadzor had blocked access to multiple domain names and IP addresses of its VPN service, disrupting its operation in Russia. Roskomnadzor’s notices indicated that access had been blocked because of the content “promoting or justifying the activities of the Islamic State of Iraq and the Levant” and other organisations listed in the Prosecutor General’s request of 16 April 2018.
6. In June 2018, the applicant company sent a letter of complaint to Roskomnadzor. It pointed out that the targeted domains and IP addresses did not have any unlawful content: the TgVPN website provided a description of the VPN service it offered, while the other blacklisted domains and IP addresses were used for technical purposes and returned blank pages. It requested Roskomnadzor to disclose the text of the Prosecutor General’s request of 16 April 2018 with a view to verifying whether it had concerned the TgVPN resources. Roskomnadzor refused to restore access to the applicant company’s resources or provide a copy of the request.
7. The applicant company complained to a court that Roskomnadzor had acted beyond its legal mandate. The TgVPN website or its supporting resources had not been listed in the Prosecutor General’s request of 16 April 2018. They did not feature any proscribed content or “mirrored” any channels of the Telegram messenger.
8. In its defence, Roskomnadzor submitted that, lacking technical means to block access to specific content on the platform of the Telegram messenger, it had implemented across-the-board blocking of the messenger to comply with the District Court’s order of 13 April 2018 and the Prosecutor General’s request of 16 April 2018. While monitoring online resources, it had detected services, such as tgvpn.com, which enabled users to access prohibited information and channels on the messenger’s platform, and blocked access to them.
9. On 19 September 2018 the Moscow Commercial Court dismissed the applicant company’s complaint, finding that Roskomnadzor had acted in compliance with the applicable provisions of the Information Act. On proportionality of the blocking measures, the court held that the applicable legislation did not provide for any alternative measures for blocking access to websites which were used for disseminating proscribed content.
10. On 7 December 2018 the Ninth Commercial Court of Appeals dismissed the applicant company’s appeal. For the appellate court, the fact that the applicant company’s servers enabled users to access the Telegram messenger was established. The applicant company should have adduced evidence showing otherwise but failed to do it.
11. Cassation appeals were dismissed by the Commercial Court of the Moscow Circuit on 22 March 2019 and by the Supreme Court of the Russian Federation on 12 July 2019. The Supreme Court declared itself incompetent to establish whether or not the applicant company’s resources were used for enabling access to prohibited content.
COMPLAINT
12. The applicant company complains under Article 10 of the Convention that the wholesale blocking of its resources had no basis in the domestic law and that the domestic courts did not address the substance of its grievance.
QUESTIONS TO THE PARTIES
Has there been a violation of Article 10 of the Convention on account of blocking of access to the online resources of the applicant company? In particular, were the relevant provisions of the Information Act sufficiently foreseeable in their effects? Did Roskmonadzor exceed the limits of what was permissible under the law?
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