On 15 January 2018, ARTICLE 19, together with the Electronic Frontier Foundation (EFF), Access Now and Reporters without Borders (RSF) filed a third-party intervention submission before the European Court of Human Rights (ECtHR) in the case OOO Flavus and Others v Russia.
The case concerns a series of blocking orders issued by the Prosecutor General, and enacted by Roskomnadzor (the Russian telecoms regulator), against three websites by virtue of the Information Act, which was amended in 2013 to grant the Prosecutor General the authority to block access to websites containing:
- Calls for mass disorder, extremist activities, participation in unauthorised mass gatherings
- Extremist materials
- Information on technologies that can be used to access blocked websites containing extremist material.
The orders were made against three of the Russian major opposition websites, namely: Grani.ru, a news and opinion site registered as mass media, the owner of which is OOO Flavus, the applicant company; the online newspaper Eg.ru; and the website Kasparov.ru, owned by an opposition politician, who is also one of the applicants in the case. The websites contained publications in support of the people arrested during the mass disorders that took place in the Bolotnaya Square in Moscow on 6 May 2012.
Access to the applicants’ websites had been blocked and they had been required by a notice to delete the allegedly offending information. The Kasparov.ru website submitted in its application to the ECtHR that notwithstanding the replacement of the accused material, it had received no response from the telecom regulator when it had repeatedly asked them to stop blocking access. The website blocking order had been issued by the Prosecutor General on the basis that the information on the applicants’ websites “revealed a uniform thematic trend towards the coverage of public events of an unlawful nature in the Russian territory”.
In our submission, ARTICLE 19 and the other interveners argue that the blocking and/or taking down “extremist” material on the basis of vague and overbroad laws is a serious violation of international standards on freedom of expression:
- In particular, the concepts of “extremism” or “violent extremism” are inherently vague and should not in principle be used as a basis for restrictions on freedom of expression. Following a review of comparative material in this area, it is clear that existing laws on extremism fall well below the requirement of legality under international human rights law. The interveners further noted that the 2016 Joint Declaration on Freedom of Expression and countering violent extremism, enjoined States to refrain from pressuring, punishing or rewarding intermediaries with the aim of restricting lawful content. International standards on freedom of expression were also clear that States should not rely on national security and public order to allow restrictions on material to protect the government from embarrassment or exposure to wrongdoing, or to conceal information about the functioning of its public institutions.
- In line with the 2011 Joint Declaration on Freedom of Expression on the Internet, ARTICLE 19 and others further submitted that the blocking of an entire website is an extreme measure – analogous to banning a newspaper or broadcaster – which can only be justified in accordance with international standards, for example where necessary to protect children against sexual abuse. The Interveners further noted that the Council of Europe had listed Russia among those States that unduly extended the common grounds under which blocking may be legitimate (to include, for instance, the blocking of “homosexual propaganda”).
- In any event, the website blocking procedure in place in Russia failed to comply with the requirements of procedural fairness under Articles 10 and 6 of the Convention. In particular, the Interveners argued that if mandatory website blocking were ever to be permissible, it should:
- Be provided by law with a sufficient degree of clarity and precision. Any blocking measures based on vague and overbroad or ill-defined terms such as “extremism” risked blocking being used to quash the democratic expression of alternative views and were almost certain to have a chilling effect on freedom of expression
- Be ordered by a Court or other independent body
- Be strictly necessary and proportionate to the legitimate aim pursued.