The ECHR decision of 23 June 2020 in the case of Engels v. the Russian Federation (aplication No. 61919/16).
In 2016, the applicant was assisted in the preparation of the aplication. The aplication was subsequently communicated to the Russian Federation.
The case successfully considered an aplication about forcing the applicant, who is the owner and administrator of an Internet site dedicated to the protection of the right to freedom of expression online and privacy in the digital environment, to remove the content recognized by the court decision as prohibited, which he produced in order to avoid blocking the entire Internet site. The case violated the requirements of article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, article 13 in relation to article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicant, the owner and administrator of a website dedicated to the protection of the right to freedom of expression online and privacy in the digital environment, was faced with a choice: either the removal of allegedly prohibited content, or the blocking of the entire site as a result of a decision by a court of the Russian Federation, which found that prohibited information was posted on the site, and sent an order to the communications supervisory authority to immediately block access to the site. The applicant removed the disputed content.
Regarding compliance with article 10 of the Convention. The court's decision, which found that the content of one of the pages of the applicant's site was prohibited, led to the fact that the applicant was forced to remove it in order to avoid blocking the entire site and that visitors to the site could not access this content. Consequently, the decision complained of constituted "interference by the public authorities" with the right to receive and disseminate information. The reason 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). Paragraph 5 of this article of the law specifies three types of decisions by which the courts of the Russian Federation could determine online content as prohibited. In the applicant's case, the decision was made by a court of general jurisdiction in accordance with sub-paragraph 2 of part 5 of Article 15.1 of the Law on Information. Unlike subparagraph 1 of this part of the Law on Information, which listed seven specific categories of online content that could be blocked, or subparagraph 3, which clearly referred to content of a defamatory nature, the second subparagraph allowed the blocking of sites on the basis of "a court decision recognizing information distributed through the Internet as information whose distribution is prohibited in the Russian Federation".
the breadth of application of this provision of the information act was exceptional and unprecedented. it did not provide courts or site owners with any indication of the nature or categories of online content that might be prohibited. it also did not contain references to other legislative, bylaw or other normative acts that would define the scope of its operation. such an obscure and overly broad provision of the law did not meet the requirement of predictability. It did not give the owners of the sites, as the applicant in the present case, the opportunity to regulate their actions, since they could not know in advance what content could be banned and could lead to the blocking of the entire site.
The applicant's case illustrated how this provision of the Information Act could lead to arbitrary consequences in practice. At the request of the city prosecutor, the court ruled that the information on how to bypass the filters and the software that could be accessed on the applicant's website were "information whose distribution is prohibited in the Russian Federation". The Court did not find that filter circumvention technologies were prohibited in the Russian Federation or that providing information about them violated any law of the Russian Federation. The applicant's website did not contain any extremist statements, calls for violence or illegal activities, child pornography or other prohibited content. The only basis for the court's decision was the fact that filter-circumvention technologies could have allowed users to access extremist content on another site that was not linked to the applicant and in respect of which the applicant did not have the ability to exercise any control.
The use of technologies to bypass filters could not be reduced to obtaining access to extremist content by attackers. The Court of the Russian Federation did not consider many legitimate goals before making a decision on blocking.
All information technologies, from the print press to the Internet, are developed to store, receive and process information, and information technologies are content-neutral. They are a way of storing and accessing content and cannot be equated with the content itself, regardless of its legal status. Just as print media can be used for any publication, from a school textbook to an extremist pamphlet, the Internet stores and provides access to a wealth of information, some parts of which may be prohibited for a number of reasons, depending on a particular jurisdiction. Removing information about online information technologies on the grounds that they may sometimes facilitate access to extremist material is no different from restricting access to printers and copiers because the latter may have been used to reproduce the material. Blocking information about such technologies prevented access to all content that was available through the use of these technologies. In the absence of a specific legal basis in the legislation of the Russian Federation, the contested radical measure was arbitrary.
With regard to the guarantees that the legislation of the Russian Federation should have provided to protect individuals from the excessive and arbitrary consequences of blocking, the Court noted that the breadth of discretion provided for in article 15.1 (5) (2) of the Information Act was such that it might have been difficult, if not impossible, to appeal a court decision on appeal. 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 in accordance with Article 15.1 of the Law on Information. The request of the prosecutor's Office for blocking was prepared without prior notification of the parties whose rights and interests could be affected. Despite the fact that the applicant's contact details were clearly visible on the site, he was not notified or invited to give an explanation about the purpose of posting information on Internet technologies on his site, bypassing filters. The City Court did not invite the applicant to participate in the proceedings or present arguments in the case, considering the issue as relevant to the prosecutor and the local Internet provider.
The participation of a representative of a local Internet service provider in the proceedings was not sufficient to make the proceedings competitive. The Internet service provider provided technology that allowed users to access millions of sites that it knew nothing about. It did not have as much detailed information about the content posted on these sites as the owners did, nor did it have the required legal resources to ensure that each site was effectively protected. The Internet service provider was not interested in the outcome of the case. the blocking orders had no consequences for its activities, they were subject to execution not only by the provider-defendant in the case, but also after the decision entered into legal force, they acquired a universal character and were subject to execution by all russian internet providers. the proceedings on the issue of blocking the site, conducted in the absence of the applicant, were not adversarial in nature and did not constitute a forum in which all interested parties could be heard. Neither the prosecutor nor the city court assessed the consequences of the block before it was applied, nor did they explain why the decision to block it had to be implemented urgently and immediately, without giving interested parties the opportunity to file a complaint.
Finally, in the course of the proceedings initiated by the applicant to challenge the court's decision to block the site, 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 regional court did not try to compare the various interests involved in the case. He limited himself to checking compliance with the formal requirements of the letter of the law. However, a judicial review in accordance with the Convention should take into account, inter alia, 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 provide guarantees that can protect individuals from the excessive and arbitrary consequences of applying drastic measures to block the site, such as in the present case. In the light of the examination of the legislation of the Russian Federation applied in the present case, the Court concluded that the impugned interference was the result of the application of the procedure provided for in article 15.1 (5) (2) of the Information Act, which did not comply with 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 Court of Appeal had not considered the merits of the applicant's complaint and whether the blocking was a necessary and proportionate measure.
In the application of article 41 of the Convention. The Court awarded the applicant EUR 10,000 in respect of non-pecuniary damage.