Communicated on 4 February 2021
Published on 22 February 2021
THIRD SECTION
Application no. 38950/20
Anton Aleksandrovich YAROSH
against Russia
lodged on 13 August 2020
STATEMENT OF FACTS
1. The applicant, Mr Anton Aleksandrovich Yarosh, is a Russian national, who was born in 1989 and lives in Moscow. He is represented before the Court by Mr K. Koroteyev, a lawyer practising in Moscow.The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant is the founder and publisher of the online magazine Batenka («Батенька, да вы трансформер», batenka.ru) which shares feature articles, personal essays and life stories reflecting on the transformation of Russian society.
4. On 18 December 2018 an account of the life of a heroin user, titled “Heroin: Model’s Own” («Героин – собственность модели»), was published on Batenka. The lead of the story read as follows:
“Heroin is considered a drug for the people on the fringe of society but, according to statistics, more than 1.5 million heroin addicts live in Russia. This means that we see them on the subway and on the street every day, but we do not notice them because many of them do not stand out and know how to make their addiction invisible. [Our] journalist ... found a young woman who has been using heroin for ten years and barely hides it. She uses [her social media account] as a diary, posting selfies and pictures of heroin supplies and syringes in the bin ... She believes that her looks and meticulously organised life can set an example for others. Theo’s [the main character’s name] story is about a loan shark’s advance for heroin, stays in the rehab, rejection of intimacy, and mom calling her as she is about to pick up a stash.”
5. On 19 December 2018 the Ministry of the Interior determined that the entire publication conveyed a “positive image” of a drug user and amounted to “propaganda” of the use of drugs which is prohibited in Russia. The determination was based on Criterion 2.1.6 of the common set of criteria for categorising online content as illegal (see paragraph 14 below). The Ministry specifically mentioned the following passages:
“In the morning Aleksey prepared meth for both of them. ‘Heroin is my medication but [the desire for] meth and other drugs depends on the situation. I was in the mood for some today’, Theo explains.”
“Theo starts each morning with an injection, even before brushing her teeth. She wakes up at 11 or 12 a.m. and goes to the kitchen. She takes a shot, smokes a cigarette and washes her face. She does not let herself to ‘zone out’, to stare into the void. She sits down to work on her laptop. She takes another shot later in the day. One more in the afternoon if she feels like it. She does not need to go to the office, she is a freelance coder and finds work on YouDo.”
“As we talk, she interjects punchy statements, a sort of short rules she lives by: ‘Never in my life have I wanted to quit’, ‘I know how serious [my addiction] is’, ‘Why should I give up something that I like’, ‘Heroin is compatible with a normal lifestyle’, ‘I do not advocate it for others but I take responsibility for my decisions’.”
6. On the same day the media and telecoms regulator Roskomnadzor added the URL of the publication to the Integrated Register of banned online content. On 20 December 2018 Roskomnadzor notified the applicant of its decision and requested that he take down the publication on pain of having access to the entire website blocked.
7. The applicant sought a judicial review of the Ministry’s determination and Roskomnadzor’s decision. He relied in particular on Article 10 of the Convention and submitted an expert assessment of the publication which concluded that the text purported to destigmatise drug users and contained no language which could be described as “propaganda”.
8. On 2 April 2019 the Taganskiy District Court in Moscow dismissed the applicant’s complaint. It endorsed the Ministry’s determination that the publication created a positive image of a drug user in so far as it asserted “positive effects of drug use” and told the readers of a young woman who had been “using heroin for many years without adverse consequences”. Certain passages in the publication implicitly created an attractive, destigmatising and “non-scary” image of drug users. The court held that the experts’ findings contradicted the contents of the publication. On the applicant’s Convention argument, the court found that the authorities’ decision to restrict access to the publication had been a necessary and proportionate measure. It had not interfered with anyone’s freedom of expression but rather sought to avert “consequences more adverse that the impugned restriction”.
9. On 24 July 2019 the Moscow City Court upheld the District Court’s judgment, endorsing its reasoning. On 14 October 2019 and 28 February 2020 the City Court and the Supreme Court respectively refused the applicant leave to appeal to the cassation instance.
10. In separate proceedings, the applicant sought a judicial review of the criteria for categorising online content as illegal. He submitted in particular that their formulation was ambiguous and their application arbitrary and unforeseeable. They also imposed excessive restrictions on the freedom of expression. On 20 January 2020 a single judge of the Supreme Court heard and dismissed his complaint. The judge recited the applicable law and ruled that Criterion 2.1.6 conformed to the federal legislation, the Constitution and the Convention, without elaborating on the reasons for that finding. In his grounds of appeal, the applicant pointed out that the judge had restated the contents of the applicable provisions but failed to give any reasons. On 12 May 2020 the Appeals Division of the Supreme Court dismissed the appeal in a summary fashion.Relevant domestic law and practice
11. Section 46(1) of the Narcotic Drugs Act (Law no. 3-FZ of 8 January 1998, as amended on 3 February 2015) prohibits the “propaganda” of narcotic drugs, psychoactive substances and narcotic plants carried out by legal entities and individuals for the purpose of spreading the information about the means and methods of development, manufacture and use of narcotic drugs, the places where they can be purchased, and the methods and places of growing of narcotic plants. Publication and dissemination of written material, media content, online content or other actions for that purpose are prohibited.
12. Section 3 of the Information Act (Federal Law no. 149-FZ of 27 July 2006) establishes legal principles governing access to information and information technologies. Principle 1 guarantees the freedom to search for, receive, impart, create and disseminate information by all legal means. Principle 2 requires that any restriction on access to information be set out in a federal law.
13. Section 15.1 of the Information Act gives the telecoms regulator, Roskomnadzor, the authority to maintain the Integrated Register of domain names, webpage references (URLs) and network addresses of websites featuring content banned in the Russian Federation. Subsection (5) provides for three grounds on which content may be deemed illegal and added to the Integrated Register, the first being the situation where the competent executive body has determined that the material falls under one of the listed categories of illegal content. The category “b” includes the information about the means and methods of development, manufacture and use of narcotic drugs, places of purchase, and the methods and places of growing of narcotic plants (as amended on 19 December 2016).
14. On 18 May 2017 four executive agencies – the Ministry of the Interior, Roskomnadzor, the Consumer Protection Authority and the Federal Tax Service – adopted a common set of criteria for categorising online content as illegal and adding it to the Integrated Register in accordance with section 15.1 of the Information Act. Criteria 2.1.1 to 2.1.6 deal with the information about narcotic drugs. Criterion 2.1.6 provides:
“Content seeking to influence the target audience to form a positive image of people who manufacture, develop and use narcotic drugs ... [who] offer to purchase them ... or grow narcotic plants ... (with the exception of works of fiction in which such content may be justified by their genre).”
COMPLAINT
15. The applicant complains under Article 10 of the Convention that the interference was not based on a clear and foreseeable interpretation of law and that it was not necessary in a democratic society.
QUESTIONS TO THE PARTIES
Has there been a violation of Article 10 of the Convention? In particular,
(a) Was the interference lawful? Was the restriction on the publication based on federal legislation, as required under section 3 of the Information Act?
(b) Was the interference based on provisions of domestic law which were sufficiently clear, accessible and foreseeable in their formulation and interpretation?
(c) Did the interference pursue a “pressing social need”? Was the suppression of information in question “necessary in a democratic society”?
(d) Were there any exceptional circumstances justifying a prior restraint on the publication (see OOO Flavus and Others v. Russia, nos. 12468/15 and 2 others, § 39, 23 June 2020, with further references)?
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