Earlier on 23 June 2020, the European Court of Human Rights (the „Court”) issued a decision in the case Vladimir Kharitonov v. Russia (Application no. 10795/14), in which the Court reiterated that blocking access to a website may constitute a violation of freedom of expression under Article 10 of the European Convention on Human Rights (the „Convention”). Prior to this, the Court had ruled on this matter in other relevant cases, i.e. Ahmet Yıldırım v. Turkey (no. 3111/10, ECHR 2012) and Cengiz and Others v. Turkey, nos. 48226/10 and 14027/11, ECHR 2015) and the Court’s new decision reminds us of some of the principles stated before. The decision was issued along with other three cases, OOO Flavus and Others v. Russia (application nos. 12468/15, 23489/15, and 19074/16), Bulgakov v. Russia (no. 20159/15), and Engels v. Russia (no. 61919/16) all of which concern various forms of website blocking.
Below are several lessons learned from the decision that need to be considered, including by the competent public authorities, when deciding to block the access to a particular website.
Blocking access to a website may amount to interference by a public authority with the right to receive and impart information, and therefore must be an extreme measure. Article 10 of the Convention guarantees everyone the freedom of expression, meaning both one’s right to impart information and ideas and the right of the public to receive it. Blocking may amount to interference by a public authority with the right to receive and impart information. Such interference will constitute a breach of Article 10, unless it is prescribed by law, pursues one or more of the legitimate aims and is necessary in a democratic society to achieve those aims.
Consistent with the previous jurisprudence, the Court states that “prescribed by law” not only refers to a statutory basis in domestic law, but it also requires that the law be both adequately accessible and foreseeable, that is, formulated with sufficient precision to enable an individual to foresee the consequences which a given action may entail. Thus, the legal framework permitting the blocking should be clearly formulated and should provide safeguards against arbitrariness and abuse. Also, the procedure should be transparent by allowing access to the blocking decision, setting forth the reasons for the measure and providing other relevant information.
An impact assessment should be carried out prior to the implementation of the measure. The exercise of powers to interfere with the right to impart information must be clearly circumscribed so as to minimize the impact of such measures on the accessibility to the Internet. Also, the assessment is necessary in order to identify potential collateral effects of the blocking on third parties (e.g. owners of other websites accessible pursuant to the same IP address, although with different domain names, as it happened in the case leading to the issuance of the above decision).
Blocking measures should be subject to sanctions imposed by the court or other independent adjudicatory body. A legal provision giving an executive agency so broad a discretion carries a risk of content being arbitrarily and excessively blocked. Therefore, the legal framework should allow for the intervention of or the possibility for review by a judicial or independent body providing a forum in which the interested parties can be heard.
The blocking order should clearly target the illegal content in order to avoid arbitrary and excessive effects. The measure should not extend its scope far beyond the illegal content which had originally been targeted. The wholesale blocking of access to an entire website is an extreme measure which may be compared to banning a newspaper or a television station. The authority issuing the blocking order must ensure that the measure strictly targets the illegal content and has no arbitrary or excessive effects, irrespective of how it is implemented. Any indiscriminate blocking measure which interferes with a lawful content or websites, as a collateral effect of a measure aimed at an illegal content or websites, amounts to an arbitrary interference with the rights of such websites’ owners.
Various interests at stake should be weighed up. A Convention-compliant review should take into consideration, among other elements, the fact that such a measure which renders large amounts of information inaccessible, will substantially restrict the rights of Internet users and may have significant collateral effects. Where the blocking order may have collateral effects on other website owners’ rights, such owners should be notified.
While the decision prompts us to flash back to certain principles which the Court stated in its jurisprudence, recalling them proves to be of utmost importance at this time. During the state of emergency enacted amid the COVID-19 pandemic on the basis of a very scarce procedure provided under the Presidential Decrees declaring the state of emergency, the Romanian National Authority for Management and Regulation in Communications, upon decision by the Ministry of Internal Affairs, had the power to and in fact issued several decisions for blocking certain websites which were allegedly spreading fake information about the evolution of the virus.
The blocking effects were lifted once the state of emergency ended; however, the Court’s decision provides us with an opportunity to refresh the perspective over the limits of the authorities’ powers and the corresponding safeguards that should be found in the very legislation that grants website blocking powers. Or, in Spinoza's words, how to make sure that: „[h]e, who knows how to distinguish between true and false, must have an adequate idea of true and false”.
By Monica Iancu, Partner, and Vasile Soltan, Associate, Bondoc si Asociatii