Decision of the ECHR of 23 June 2020 in the case "LLC Flavus and Others (OOO Flavus and Others) v. the Russian Federation "(aplication No. 12468/15 and other aplications).
In 2015, the applicants were assisted in preparing their aplications. Subsequently, the aplications were consolidated and communicated to the Russian Federation.
The case successfully considered aplications about the unjustified complete blocking of opposition online resources in violation of the requirement for precise indication of prohibited content. The case violated article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as well as article 13 of the Convention in conjunction with article 10 of the Convention, since the Russian courts did not consider the complaint on its merits and whether the consequences of blocking the applicants ' websites were necessary and proportionate.
CIRCUMSTANCES OF THE CASE
The websites of the applicants, owners of online resources that published articles, opinions and research by opposition politicians, journalists and experts, many of which were critical of the Russian authorities, were blocked on the grounds that some of their Internet pages contained prohibited content.
Regarding compliance with article 10 of the Convention. The contested measure represented "interference by public authorities" with the right to receive and disseminate information. In the applicants ' case, the questions of compliance with the law and the existence of a legitimate purpose could not be considered separately from the question of whether the intervention was "necessary in a democratic society". In this regard, the European Court considered them jointly.
Access to the applicants ' online resources was blocked in accordance with Article 15.3 of the Federal Law of the Russian Federation No. 149-FZ of July 27, 2006 "On Information, Information Technologies and Information Protection" (hereinafter referred to as the Information Law). This provision gave the Prosecutor General or his deputies the power to request the blocking of three categories of content, including calls for mass riots or participation in mass (public) events held in violation of the established procedure. Part 2 of Article 15.3 of the Law on Information established requirements for the content of the Roskomnadzor notice, which had to specify, among other things, the URL of the web page to identify prohibited content. The notices that Roskomnadzor sent in practice did not meet this requirement, since they indicated the entire domain name of the site, and not the questionable Internet page. This not only failed to meet the requirement that the information provided by Roskomnadzor should have allowed the identification of the content to be removed, but also prevented the applicants from eliminating the alleged violation by removing the prohibited content. By failing to indicate the URLs of the Internet pages that raised questions, the Russian authorities acted arbitrarily, which prevented the applicants from making an informed choice between deleting or modifying the relevant content and raising legal objections to the Prosecutor General's request with reference to specific Internet pages.
Two websites were brought to justice for the fact that they contained materials with positive reviews of protests and public speeches in support of the defendants in the Bolotnaya case. The Prosecutor General interpreted these articles as calls to participate in unauthorized public events. The Court had previously found that the concept of "public events conducted in violation of the established procedure" used in article 15.3 of the Information Act was excessively broad and that the Prosecutor General had invoked this ground in relation to content that did not contain such calls.
The applicants ' online resources reported on the progress of the Bolotnaya case and on police detentions, in accordance with the journalistic duty to inform the public on issues of common interest and to reflect various points of view, including those that contain criticism of official policies. The Prosecutor General's request for blocking did not specify which part of the publications mentioned planned public events, allowed or not, and which part contained calls to participate in them. the expression of support for people who were brought to trial in connection with the events on bolotnaya square or who found a way to express solidarity with the accused could not be considered as a call for prohibited public events. recalling that the expression of an opinion on matters of public interest deserves strong protection, the court considered that the prosecutor general's interpretation had no factual basis and was therefore arbitrary and manifestly unreasonable.
The Prosecutor General also claimed that an image of a pamphlet calling on residents of Crimea to commit "illegal actions"was reproduced on one of the websites. the prosecutor general did not specify what the nature of the alleged illegal actions was, what elements made them illegal, or what/who gave him the authority to determine which actions of persons who were not citizens of the russian federation and lived outside the jurisdiction of the russian federation should have been considered illegal. in any case, the general concept of "illegal actions" did not apply to any of the three categories of prohibited content specified in article 15.3 of the information act. Consequently, the Prosecutor General's demand for this content had no legal basis.
To the extent that the interference was directed at content that was considered prohibited, in accordance with Article 15.3 of the Law on Information, it violated the procedure established by the legislation of the Russian Federation and the requirement of legality. However, to the extent that the Prosecutor General requested and Roskomnadzor applied the blocking of the applicants ' websites, the Court continued to examine the case to determine whether the blocking of access to all websites had a legitimate purpose and whether it could be considered "necessary in a democratic society".
The complete blocking of access to the entire site was an extreme measure, comparable to banning a newspaper or television channel. This measure deliberately ignored the distinction between permitted and prohibited information that could be contained on the site and made inaccessible a large amount of content that was not prohibited. Blocking access to the entire site in practice led to an expansion of the scope of the blocking decision, which was applied as a result not only to the prohibited material that the decision was originally aimed at, but also to a large amount of other content.
The decision that the content of the sites was prohibited was made in the applicants ' case on dubious grounds or clearly arbitrary. However, even if there were exceptional circumstances justifying the blocking of prohibited content, the blocking of access to the entire site itself required justifications separate and different from those underlying the original decision on prohibited content, and with reference to the criteria established and applied by the European Court of Justice in accordance with Article 10 of the Convention. Blocking access to permitted content can never be an automatic consequence of another, more limited blocking in the same way that article 15.3 of the Information Act allowed the authorities to extend the limited blocking requirement to the entire site. Any indiscriminate blocking that affects the permitted content of websites is an arbitrary interference with the rights of the owners of such sites. the authorities of the russian federation did not provide any justification for the decision to block all sites completely. they did not explain what legitimate purpose or pressing public need the russian authorities were trying to achieve by blocking access to the applicants ' online resources. The applicants ' contention that the true purpose of the Russian authorities was to suppress access to opposition resources was a matter of serious concern. in the absence of any justification for the complete blocking of the applicants ' websites, the european court held that the decisions on this blocking did not pursue any legitimate purpose.
blocking until a court decision was made on the legality of publishing content was a preliminary restriction of publications. The danger posed by such preliminary restrictions is such that it requires the most careful supervision by the European Court of Justice and can only be justified in exceptional circumstances. This is all the more true when it comes to the press, since news is a perishable commodity, and delaying its publication even for a short period of time can deprive them of all value and interest. In cases of preliminary restrictions on the activities of news resources, the regulatory framework should ensure both strict control over the scope of the prohibitions and effective judicial review in accordance with the Convention.
The legislation of the Russian Federation did not provide the owners of online resources, as the applicants in the present case, with any procedural guarantees capable of protecting them from arbitrary interference based on article 15.3 of the law on information. The legislation of the Russian Federation did not require any form of participation of the site owner (applicant) in the proceedings on the issue of blocking. both the original decision of the prosecutor general and roskomnadzor's orders on its application were issued without prior notice to the parties whose rights and interests may have been affected. The Information Act did not require the authorities to assess the consequences of blocking before applying them, or to justify why the decision to block should have been implemented urgently and immediately, without giving interested parties the opportunity to go to court. 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 Information Act did not require the authorities to justify the necessity and proportionality of interfering with the right to freedom of expression online, or to consider whether the same result could have been achieved by less stringent measures. It also did not require the authorities to check whether the blocking was aimed only at prohibited content, and whether it had arbitrary and excessive consequences, including those related to the blocking of the entire site.
With regard to the requirement of publicity, the Information Act did not provide for sending the request for blocking specified in article 15.3 of that Law to the owners of the relevant sites. The applicants were not aware of the grounds for the request for blocking until access to their websites was blocked and they applied to the court.
Finally, with regard to the proceedings initiated by the applicants to challenge the blocking, the Court had previously found that the breadth of discretion provided for in article 15.3 of the Information Act was such that it might have been difficult, if not impossible, to challenge the blocking of websites in court. There was nothing to indicate that the courts that dealt with the complaints tried to compare the various interests involved in the case, in particular by assessing the need to completely block access to the sites. This shortcoming was due to the fact that 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. In making the decision, the courts limited themselves to stating that the Prosecutor General and Roskomnadzor had exercised the discretionary powers granted to them by the legislation of the Russian Federation. However, a judicial review in accordance with the Convention should take into account, inter alia, the fact that the blocking, as a result of which large amounts of authorized information became inaccessible, significantly restricted the rights of the site owner and Internet users and led to other serious consequences.
The interference resulting from the application of the procedure provided for in article 15.3 of the Law on Information had excessive and arbitrary consequences, and the legislation of the Russian Federation did not provide the applicants with the degree of protection from abuse to which they were entitled by virtue of the rule of law in a democratic society. To the extent that the blocking was aimed at all online resources, and not only at the content initially recognized as prohibited, the interference was devoid of the grounds provided for in article 10, paragraph 2, of the Convention. It did not pursue a legitimate goal and was not necessary in a democratic society.
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 applicants ' websites were necessary and proportionate.
In the application of article 41 of the Convention. The European Court awarded each of the applicants 10,000 euros in compensation for non-pecuniary damage.