ARTICLE 19 and the Electronic Frontier Foundation (EFF) have filed a third-party intervention submission in the case of Kharitonov v. Russia (no. 10795/14), currently pending before the European Court of Human Rights (European Court).
The case concerns the collateral damage of website blocking in Russia. In December 2012, the Russian authorities issued a website blocking order against a site that hosted content they deemed to be illegal under Russian law. The measure was implemented by means of an IP-address blocking technology. However, the IP-address server that hosted the targeted site also hosted several additional, completely unrelated sites. When that IP-address was blocked, all of these sites became inaccessible, thus becoming victims of collateral blocking.
ARTICLE 19 and EFF believe that thiscase presents an opportunity for the European Court of Human Rights to develop its case-law in the Yldirim case and further clarify its approach to website blocking. In our submission, we make it clear that website blocking is an extreme measure, analogous to banning a newspaper or revoking the license of a TV station. It is both ineffective – because it can be easily circumvented, and overbroad – as it cannot distinguish between legal and illegal content within a website. As such, website blocking is always a disproportionate interference with freedom of expression
However, the fact remains that many Council of Europe member states have adopted laws allowing the blocking of content considered harmful, ranging from child pornography to copyright infringement.
In light of this, we argue that, at a minimum, website blocking measures should only be considered compatible with human rights if they comply with the following requirements.
(1) First, blocking measures must be provided for by law. A legal provision must establish clear and predictable rules concerning what content can be blocked, and to what extent. When it comes to assessing what content can be blocked, domestic legislations should follow the standards set by International Human Rights Law.
(2) Secondly, blocking measures must be issued by a court or an independent adjudicatory body. Non-independent government agencies are likely to enforce overly restrictive measures, as their primary goal is to protect interests that conflict with freedom of expression.
(3) Thirdly, Internet users and ISPs must be allowed to challenge blocking measures. To that end, they must be given sufficient information on how to mount that challenge whenever they attempt to access a blocked site.
(4) Lastly, blocking measures should be strictly targeted in order to avoid blocking lawful content. IP-address technologies should only be implemented in order to target non-shared IP servers. This is the view taken, with some nuances, by courts in the United Kingdom, Sweden and Germany.
In our submission to the European Court, we also surveyed the website blocking practices of several European countries. The general picture is concerning. Many states fail to meet even the minimal requirements we outline above. In particular, they have adopted laws granting broad website blocking powers to administrative bodies, they employ technologies that are likely to result in collateral overblocking, and they have failed to set clear and effective procedural avenues for challenging blocking orders, open to all users. At the same time, the courts have generally made it clear that blocking measures should strictly target illegal content. Thus, most courts hold that measures such as IP-address blocking should be reserved to cases where it can be proved that the IP-address server does not host lawful websites.
In view of this, we hope that the Court will seize the opportunity presented by the Kharitonov case to establish a clear and coherent framework that ensures that website blocking orders do not hinder the freedom to impart and access information online.