On 10 June 2022, ARTICLE 19, together with Access Now, Electronic Frontier Foundation, Human Rights Watch, Privacy International and Reporters Without Borders, submitted a third-party intervention to the European Court of Human Rights in the case of blocking the Telegram app in Russia. Telegram was blocked countrywide after the company refused to comply with a government disclosure order to hand over confidential information about its users. The authorities claimed that they wanted, in particular, to access the private communications of users in order to detect potential ‘extremist’ threats. In our amicus, we draw attention to the importance of maintaining strong encryption practices in online communications to help safeguard freedom of expression. In our view, blocking an entire app presents a serious and disproportionate restriction on freedom of expression.
The case Telegram Messenger LLP and Telegram Messenger Inc v Russia originated from the messaging app Telegram’s refusal to comply with a government disclosure order. In July 2017, the company behind the app received a disclosure order from the Russian Federal Security Service requesting them to disclose confidential user information. The company refused, maintaining the importance of the confidentiality of private communications and the freedom of expression of Telegram users. As the company failed to hand over the requested information, a Russian court convicted, fined and then blocked access to the app countrywide.
ARTICLE 19, together with partners, is concerned by the Russian court’s decision to block access to Telegram in the country. This case directly interferes with the right to access information, as social media and messaging apps have become essential tools for receiving and imparting information. The decision to block an entire app is a severe one and should always be approached with caution. We believe that it is important for the Court to reaffirm the need to maintain the safety of private communications and recognise that encryption is a staple component of the right to privacy.
We believe that these types of disclosure orders and the subsequent sanctions are aimed at cracking down on freedom of expression by creating low encryption thresholds, removing the right to anonymity and intimidating companies into compliance with severe sanctions. Therefore, in our submission, we highlight the following:
- Any measures that are taken to restrict or weaken encryption and anonymity, through the use of backdoors and weak encryption standards, considerably weaken the safety of individual users. If any restriction is to be imposed on encryption and anonymity, an assessment of the proportionality of the measure should be carried out to ensure that the legitimate aim pursued is the least intrusive possible.
- Encryption is of vital importance for journalists and human rights defenders, among others. In the case of journalists, this could lead to the names of sources being revealed. Internet users in Ukraine and activists in Russia could face severe consequences if their identities or those of their families were to be released to the Russian authorities during the conflict. If their private messages were to be revealed it would undermine their work and create a chilling effect on freedom of expression for fear of retaliation.
- Any interference with encryption should be carried out in accordance with the law and pursue a legitimate aim. Without strong encryption standards, the right to privacy and the right to freedom of expression are at risk.
- The blocking of an app or service is a severe penalty and should only be seen as a last resort. We strongly believe that restricting access to or blocking an entire app based on an order that concerns a small group is extremely disproportionate and sets a worrying precedent. Online platforms are undeniably the first source of information for many people. People use these apps to freely express themselves and the blocking of an app immediately removes that vital tool for expression.