Judgment of the ECHR of 23 June 2020 in the case "Vladimir Kharitonov v. the Russian Federation" (aplication No. 10795/14).
In 2014, the applicant was assisted in the preparation of the aplication. The aplication was subsequently communicated to the russian federation.
The case successfully dealt with an aplication that the website of the applicant, the owner and administrator of the website on the production and distribution of electronic books was blocked as a result of the blocking of another website that hosted a collection of stories on cannabis-related topics and which was located at the same digital network address (IP address). The case involved a violation of article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms in conjunction with article 10 of the Convention.
CIRCUMSTANCES OF THE CASE
The website of the applicant, the owner and administrator of a website about the production and distribution of e-books, was blocked as a result of the blocking of another website that hosted a collection of stories on cannabis-related topics and which was located at the same digital network address (IP address).
Regarding compliance with article 10 of the Convention. The contested measure was "interference by public authorities" with the right to receive and disseminate information. The legal basis for the intervention was Article 15.1 of the Federal Law of the Russian Federation of July 27, 2006 N 149-FZ "On Information, Information Technologies and Information Protection "(hereinafter - the Law on Information). This provision defined the categories of prohibited content that could be blocked, and established a step-by-step procedure for making a decision on blocking. Article 15.1 of the Information Act allowed the authorities to block the site completely, without distinguishing between prohibited and permitted content that the site might contain. However, completely blocking access to the entire site was an extreme measure, comparable to banning a newspaper or television channel. If at least some content was posted on another site that could be considered prohibited, the applicant's site did not contain information that fell within the scope of article 15.1 of the Information Act. The applicant was not in any way associated with the owners of another site or responsible for the allegedly prohibited content. Thus, the intervention in question was not based on a provision of the law that should have served as a legal basis for it.
the blocking of the applicant's website was an automatic consequence of the decision taken by the authorized body of the russian federation for supervision of communications, roskomnadzor, to include the ip address of another site in the register of blocked resources. the immediate consequence of this decision was to completely block access to the entire cluster of websites whose ip address coincided with the ip address of the offending site. article 15.1 of the law on information gave roskomnadzor broad powers in implementing the decision to block a particular site. However, the Information Act did not require this authority to check whether a given address was used by more than one site, or to determine whether it was necessary to block an IP address. This procedure could have led, and in the circumstances of the applicant's case, to the practical consequence of extending the scope of the decision to block far beyond the prohibited content to which the decision was originally directed.
Virtual hosting is a common and affordable hosting mechanism for small and medium-sized sites. However, the owners of personal sites, such as the applicant, may not be aware of the content of other sites located on the same web server, while the provider, in the present case it was a company located outside the jurisdiction of the Russian Federation, is not bound by the definition of prohibited content adopted by the authorities of the Russian Federation. Whichever version of the virtual hosting platform the applicant chose, he was exposed to the risk that the authorities of the Russian Federation would declare any content of sites hosted on the same web server prohibited and that the owners of these sites and hosting providers would not comply with orders to remove this content. The legislation of the Russian Federation did not impose on the applicant the obligation to control the content of other sites hosted on the same web server, or the provider's compliance with the decision to remove prohibited content. Nevertheless, as a result of the breadth of powers granted by the legislation of the Russian Federation to Roskomnadzor in the field of blocking sites, the applicant was forced to experience the consequences of the authorities ' decision to block only because his site was accidentally connected, at the level of infrastructure, with someone else's prohibited content. In such circumstances, the Court could not find that the law was sufficiently predictable in its consequences and provided the applicant with an opportunity to regulate his conduct.
The exercise of the power to interfere with the right to disseminate information should have been clearly defined in order to minimize the impact of such measures on Internet accessibility. In the applicant's case, Roskomnadzor agreed with the decision by which the Federal Drug Control Service recognized the content of the website that did not belong to the applicant as prohibited. Both the initial decision to declare the content prohibited and Roskomnadzor's orders for its use were made without prior notice to the parties whose rights and interests may have been affected. The block was not resolved by a court or other independent dispute resolution body that would provide interested parties with a forum where they could be heard. the legislation of the russian federation also did not require the authorities to conduct any assessment of the consequences of blocking before its application. Roskomnadzor did not have a legal obligation to identify potential side effects of blocking an IP address, despite the fact that as a result of using common Internet usage techniques, it was possible to quickly get a list of sites located on the same web server.
As for the transparency of the blocking, Roskomnadzor ensured the functioning of a web service that allowed anyone to find out whether the site was blocked and on what legal basis, what was the date and number of the relevant decision and the body that made it. However, it was not possible to access the text of the decision on blocking, as well as information about the reasons for blocking or ways to appeal this measure. the legislation of the russian federation also did not provide for the obligation to notify third parties that a decision was made to block, in cases where it led to side effects for the rights of owners of other sites. the applicant did not have access to the decision on blocking: it was not presented during the proceedings at the domestic level, and the courts of the russian federation rejected the applicant's request for its disclosure.
Finally, with regard to the proceedings initiated by the applicant to challenge the accidental consequences of blocking, there was nothing to indicate that the courts that examined his complaint tried to compare the various interests involved in the case, in particular by assessing the need to block all sites located on the same web server. The courts of the respondent State did not apply the Decision of the Plenum of the Supreme Court of the Russian Federation No. 21 of 27 June 2013, according to which they were obliged to take into account the provisions of the Convention in its interpretation by the European Court. When making the decision, the courts limited themselves to stating that Roskomnadzor acted in accordance with the letter of the law. However, the judicial review in accordance with the Convention should have taken into account, among other things, the fact that the blocking, which made large amounts of authorized information inaccessible, significantly restricted the rights of the site owner and Internet users and led to significant negative consequences.
it is incompatible with the principle of the rule of law that the regulatory framework does not establish safeguards that can protect individuals from the excessive and arbitrary consequences of measures to block the site, such as in the present case. if there were exceptional circumstances justifying the blocking of prohibited content, the state authorities, when making a decision on blocking, should have made sure that the measure concerned strictly prohibited content and did not have arbitrary or excessive consequences, regardless of the method of its application. Any indiscriminate blocking that, as a side effect, affects the permitted content or site is an arbitrary interference with the rights of the owners of such sites.
Having considered the legislation of the Russian Federation applied in the present case, the Court concluded that the interference was the result of the application of the procedure provided for in article 15.1 of the Information Act, which did not meet the Convention's requirement of predictability and did not provide the applicant with the degree of protection against abuse to which he was entitled by virtue of the rule of law in a democratic society. Consequently, the intervention was not "provided for by law".
the case involved a violation of the requirements of article 10 of the convention (adopted unanimously).
The Court also unanimously held that there had been a violation of article 13 of the Convention in relation to article 10 of the Convention, since the Russian courts had not considered the merits of the complaint and whether the consequences of blocking the applicant's website were necessary and proportionate.
In the application of article 41 of the Convention. The Court awarded the applicant EUR 10,000 in respect of non-pecuniary damage.