Website blocking by court decision may violate the European Convention on Human Rights
Blocking websites based on court decisions is more and more often used to limit the distribution of content on the Internet that is considered illegal. This causes a lot of litigation, which is addressed by a multitude of courts around the world. No exception is the European Court of Justice, which issued a ruling in early December 2015 regarding blocking YouTube in Turkey [1]. In this case, the ECtHR found a violation of the right to freedom of expression, although earlier it refused to consider complaints about the blocking of resources of last.fm and myspace.com. What factors led the ECHR to change opinion and consider the complaint, and also to recognize a violation of the Convention? Firstly, the important public importance of the YouTube resource, secondly, its importance for the work of the applicants and, thirdly, the provisions of Turkish law, which did not correspond to the decision of the Turkish court to block the site. Now about all this in more detail.
In the case of blocking YouTube, the ECHR found a violation of Article 10 of the European Convention, which guarantees the right to freely express its opinion. This right includes both the right to disseminate information and ideas, and the right to receive them. This right may be restricted by the authorities, but only in the cases referred to in Article 10 of the Convention.
The YouTube site was blocked in Turkey from May 5, 2008 to October 30, 2010 based on a decision of the Ankara court. A Turkish court found that the contents of 10 video files hosted on YouTube insulted Atatürk’s memory (the founder of the modern Turkish state) and therefore violated the law. On this basis, the court ruled to completely block the resource. The European Court came to the conclusion that the Turkish court could not make such a decision, because Turkish legislation only allows blocking specific publications, but not the entire site. Based on this, the ECtHR concluded that the decision to block YouTube did not meet the requirement of the Convention that restrictions on the right to freely express one’s opinion (and in particular, to receive information) should be provided for by law. Therefore, blocking YouTube violated article 10 of the European Convention.
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In light of the decision of the ECtHR regarding blocking YouTube, the question arises whether blocking websites in Russia may violate Article 10 of the Convention. Russian legislation allows blocking both individual pages and entire sites [2]. Therefore, on the one hand, if there is a court decision to block only a single page, then a situation may arise, as in the case of Wikipedia: this Internet encyclopedia works using a secure HTTPS protocol, therefore providers cannot block its individual pages. Because of this, after the Russian court decided to block one article, the entire Russian-language Wikipedia was blocked [3, 4]. This potentially gives rise to a complaint to the European Court with great prospects for winning for the applicant. On the other hand, if a Russian court decides to block the entire site, then the question arises whether it is necessary to block the entire site, rather than a separate page. Such a question arises because Article 10 of the Convention allows restriction of the right enshrined in it only on the basis of law and only if such restriction is necessary in a democratic society (that is, it is appropriate in a particular situation for the specific purposes specified in Article 10 of the Convention, for example: national security, public order, crime prevention, health protection and others). Therefore, the authorities must justify the need to block the entire site entirely.
An important element in the YouTube case was that the claimants were able to prove that blocking YouTube affected their professional activities and their right to receive and impart information and ideas, and that the content of the resource was unique and important for society and journalism. The applicants - Turkish citizens - taught law in Turkish universities. They managed to convince the judges of the European Court that their academic activities were affected by blocking YouTube. For example, in another case against Turkey concerning the blocking of myspace.com and last.fm due to copyright infringement, the European Court did not recognize the victim status of the applicants [5]. One of the reasons why the ECtHR rejected the complaint was that the applicants could not prove that blocking these resources had a significant impact on them and their activities, and that they obtained unique or important information using these resources that were not available in other sources. (The ECtHR noted that they could listen to all the same music and other resources). But the ECtHR ruling emphasizes that the answer to the question of whether the applicants' rights were violated depends on the assessment of the circumstances of each particular case, and in particular on the purposes for which the applicants use the website, as well as on the seriousness of the consequences for them authorities measures.
Another significant argument by the claimants was that accessing YouTube was a public interest. The European Court agreed with this argument and noted in the ruling that YouTube is a resource available in 76 countries around the world, through which information is disseminated that is of particular interest in social and political fields, as well as in terms of the development of citizen journalism; This resource disseminates political information that is ignored by traditional media. Each month, YouTube is visited by over a billion users who view more than six billion hours of video posted on it.
Thus, blocking a site may violate freedom of expression, the right to which is enshrined in Article 10 of the European Convention, if the entire site is blocked when illegal content was contained on only one or a few pages of such a site. But a person who complains to the ECtHR about the violation of his rights must prove that the blocking affects him or his activity, and the information on the website was unique and not available on other resources.
[1] ECHR decision Cengiz and others v. Turkey (nos 48226/10 et 14027/11)
[2] Federal Law of 27.07.2006 No. 149- “On Information, Information Technologies and Protection of Information”
[3] en.wikipedia.org/wiki/%D0%91%D0%BB%D0%BE%D0%BA%D0%B8%D1%80%B0%BE%D0%B2%D0%B0%D0% BD% D0% B8% D0% B5_% D0% 92% D0% B8% D0% BA% D0% B8% D0% BF% D0% B5% D0% B4% D0% B8% D0% B8_% D0% B2_% D0% A0% D0% BE% D1% 81% D1% 81% D0% B8% D0% B8 # cite_note-13
[4] www.kommersant.ru/doc/2796298
[5] Judgment of the ECHR Yaman Akdeniz v. Turkey (no 20877/10)
In the case of blocking YouTube, the ECHR found a violation of Article 10 of the European Convention, which guarantees the right to freely express its opinion. This right includes both the right to disseminate information and ideas, and the right to receive them. This right may be restricted by the authorities, but only in the cases referred to in Article 10 of the Convention.
The YouTube site was blocked in Turkey from May 5, 2008 to October 30, 2010 based on a decision of the Ankara court. A Turkish court found that the contents of 10 video files hosted on YouTube insulted Atatürk’s memory (the founder of the modern Turkish state) and therefore violated the law. On this basis, the court ruled to completely block the resource. The European Court came to the conclusion that the Turkish court could not make such a decision, because Turkish legislation only allows blocking specific publications, but not the entire site. Based on this, the ECtHR concluded that the decision to block YouTube did not meet the requirement of the Convention that restrictions on the right to freely express one’s opinion (and in particular, to receive information) should be provided for by law. Therefore, blocking YouTube violated article 10 of the European Convention.
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Can the blocking of sites in Russia violate the European Convention?
In light of the decision of the ECtHR regarding blocking YouTube, the question arises whether blocking websites in Russia may violate Article 10 of the Convention. Russian legislation allows blocking both individual pages and entire sites [2]. Therefore, on the one hand, if there is a court decision to block only a single page, then a situation may arise, as in the case of Wikipedia: this Internet encyclopedia works using a secure HTTPS protocol, therefore providers cannot block its individual pages. Because of this, after the Russian court decided to block one article, the entire Russian-language Wikipedia was blocked [3, 4]. This potentially gives rise to a complaint to the European Court with great prospects for winning for the applicant. On the other hand, if a Russian court decides to block the entire site, then the question arises whether it is necessary to block the entire site, rather than a separate page. Such a question arises because Article 10 of the Convention allows restriction of the right enshrined in it only on the basis of law and only if such restriction is necessary in a democratic society (that is, it is appropriate in a particular situation for the specific purposes specified in Article 10 of the Convention, for example: national security, public order, crime prevention, health protection and others). Therefore, the authorities must justify the need to block the entire site entirely.
The complainant to the ECtHR must prove that the site’s blocking affected his rights
An important element in the YouTube case was that the claimants were able to prove that blocking YouTube affected their professional activities and their right to receive and impart information and ideas, and that the content of the resource was unique and important for society and journalism. The applicants - Turkish citizens - taught law in Turkish universities. They managed to convince the judges of the European Court that their academic activities were affected by blocking YouTube. For example, in another case against Turkey concerning the blocking of myspace.com and last.fm due to copyright infringement, the European Court did not recognize the victim status of the applicants [5]. One of the reasons why the ECtHR rejected the complaint was that the applicants could not prove that blocking these resources had a significant impact on them and their activities, and that they obtained unique or important information using these resources that were not available in other sources. (The ECtHR noted that they could listen to all the same music and other resources). But the ECtHR ruling emphasizes that the answer to the question of whether the applicants' rights were violated depends on the assessment of the circumstances of each particular case, and in particular on the purposes for which the applicants use the website, as well as on the seriousness of the consequences for them authorities measures.
Another significant argument by the claimants was that accessing YouTube was a public interest. The European Court agreed with this argument and noted in the ruling that YouTube is a resource available in 76 countries around the world, through which information is disseminated that is of particular interest in social and political fields, as well as in terms of the development of citizen journalism; This resource disseminates political information that is ignored by traditional media. Each month, YouTube is visited by over a billion users who view more than six billion hours of video posted on it.
findings
Thus, blocking a site may violate freedom of expression, the right to which is enshrined in Article 10 of the European Convention, if the entire site is blocked when illegal content was contained on only one or a few pages of such a site. But a person who complains to the ECtHR about the violation of his rights must prove that the blocking affects him or his activity, and the information on the website was unique and not available on other resources.
[1] ECHR decision Cengiz and others v. Turkey (nos 48226/10 et 14027/11)
[2] Federal Law of 27.07.2006 No. 149- “On Information, Information Technologies and Protection of Information”
[3] en.wikipedia.org/wiki/%D0%91%D0%BB%D0%BE%D0%BA%D0%B8%D1%80%B0%BE%D0%B2%D0%B0%D0% BD% D0% B8% D0% B5_% D0% 92% D0% B8% D0% BA% D0% B8% D0% BF% D0% B5% D0% B4% D0% B8% D0% B8_% D0% B2_% D0% A0% D0% BE% D1% 81% D1% 81% D0% B8% D0% B8 # cite_note-13
[4] www.kommersant.ru/doc/2796298
[5] Judgment of the ECHR Yaman Akdeniz v. Turkey (no 20877/10)
Source: https://habr.com/ru/post/297714/
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