The European Court of Human Rights will soon hear a key case on website blocking and freedom of expression online - Kharitonov v Russia (app no. 10795/14). The case raises tons of important issues. It should be therefore closely watched by scholars, advocates and policy makers. So why is this case so important?
Let's start with some context. According to the communicated file the applicant is the executive director of the Association of Electronic Publishers and a co-founder of the Association of Internet Users. He is the owner and administrator of the www.digital-books.ru website which features a compilation of news, articles and reviews about electronic publishing. The website had existed since 19 May 2008 and was hosted by Dreamhost, a US-based provider of shared web hosting service. The service provides hosting to multiple websites which reside on a single machine with a single IP address but have different domain names. When the user’s browser requests a website from the server, it includes the requested domain name as part of the request. The server uses this information to determine which website to show the user.
In late December 2012 users from various Russian regions reported to the applicant that access to his website was blocked by their internet providers by reference to “a decision by the competent Russian authority”. He checked the register of websites blacklisted by the Federal Telecom Supervision Service (Roskomnadzor) and found out that the IP address of his website had been entered into the blacklist by the decision of the Federal Drug Control Service dated 19 December 2012. The decision was intended to block access to another website, The Rastafari Tales (www.rastaman.tales.ru), featuring a collection of fictional stories about the use of cannabis, which was also hosted by Dreamhost with the same IP address as the applicant’s website.
The applicant complained to a court that the decision to block the entire IP address had the effect of blocking access to his website which did not contain any illegal information. On 19 July 2013 the Taganskiy District Court in Moscow rejected the applicant’s complaint, holding that Roskomnadzor had acted within its competence, in accordance with the law and for the purpose of protecting children from harmful information relating to the use of drugs. It did not assess the impact of the contested measure on the applicant’s website. The applicant filed an appeal, relying in particular on the Court’s findings in the case of Ahmet Yıldırım v. Turkey (no.3111/10, ECHR 2012) which concerned indiscriminate blocking of a hosting service. On 12 September 2013 the Moscow City Court dismissed the appeal, finding that the principle of proportionality had not been disrespected because Roskomnazdor had lawfully blocked access to unlawful information. It did not address the effect of the blocking decision on the applicant’s website.
The case thus concerns collateral blocking of the applicant’s website that took place when the government wanted to restrict access to illegal information online. Make no mistake, this is no isolated issue in Russia. According to the data provided by Roskomsvoboda, a Russian community project supporting freedom of information online, as of 28 June 2017, staggering 6,522,629 Internet resources have been blocked in Russia. Of this number, 6,335,850 Internet resources were blocked collaterally, meaning that 97% of all blocked Internet content in Russia is blocked without an adequate legal justification. Wow! - is what I thought when my Russian colleagues informed me about this.
How could this happen? The answer is in simple economics. We explain this in a third party intervention that we submitted to the ECtHR just few days ago (.pdf): "(..) profit-maximizing Internet access providers use technological implementation of the blocking that magnifies collateral blocking. The IP address blocking technique is one of the least expensive ways of restricting access to information. Internet access providers frequently choose it over other possible ways. In fact, Internet access providers may not even have the necessary equipment to employ a more granular method of website blocking. For example, Roskomnadzor, the authority, has recently reported that 50-55% of all Russian Internet access providers do not have equipment that allows to analyse Internet traffic and have to rely on IP address blocking. Providers that have no choice, but to engage in over-blocking since a failure to comply with the website blocking regulations will lead to fines and also possible suspension of the license required to provide their services. Moreover, in Russia, the courts do not consider unavailability of equipment that allows granular website blocking as a valid excuse for failure to block access only to targeted websites. To illustrate the real conditions consider that even Rostelecom, the largest Russian Internet access provider (38% market share of broadband market), in which the state is a majority shareholder, acknowledges that it is unable to use more granular website blocking techniques."
"At different times due to collateral blocking Russian users were not able to access widely-used Internet services such as: Google, Vkontakte, Wikipedia, Wayback Machine (http://web.archive.org/), GitHub, Reddit, Disney, Discovery and Nickelodeon blogs , VPN services, websites hosted on Amazon Web Services, and websites that use CDN services provided by CloudFlare. In addition to the lack of safeguards, the website blocking system in Russia has vulnerabilities that facilitates over-blocking. Any owner of a blocked website can unilaterally change the IP address of the website to any other IP address (for example, the IP address associated with youtube.com). In such case Internet access providers that use IP blocking will be required, under the threat of a penalty, to block the IP address associated with youtube.com making it immediately unavailable for Russian users. This vulnerability in the Russian website blocking system has been known since 2012, including by Roskomandzor, the authority. The magnitude of its wide exploitation for abuse is only rising. Since its start, internet access was blocked to a number of popular websites, including Wikipedia and news websites. It cannot be ruled out that this vulnerability is also responsible for a recent disruption in the banking system."
In order words, the Russian state created a blocking scheme leads to excessive over-blocking because market players predictably implement mostly cheap technology. And when over-blocked websites try to get back online, they are denied any recourse in law. Wonderful, isn't it? Even better, the local courts tells such operators that there is nothing they can do about it and that the law per se is just fine, despite lack of any safe-guards against over-blocking, and ex-ante or ex-post remedies for unwittingly targeted. The state knows about these effects and does [wait for it] nothing! We can surely do better than that.
In our submission, we address: (i) the importance of the decision and task of the Court, (ii) the reasons why the states should be held accountable for collateral over-blocking of the websites by private parties, (iii) importance of specific legal basis as to the target and means of blocking, (iv) the need to observe the principle of proportionality in grant and implementation of website blocking and (v) available remedies against the abuse of website blocking.
We suggests that the Court should recognize that the state can be held accountable for collateral over-blocking in circumstances where it is a foreseeable consequence of its actions. The intervention also suggests that the Court can strengthen online freedom of expression by requiring the state which mandates and delegates website blocking to private actors to mitigate the risks of collateral censorship by taking proactive steps, such as case-by-case assessment of proportionality, guiding the choice of technological implementation and employing effective ex-ante and ex-post remedies.
If you want to learn more about the case, just read our third party intervention - its here. I highly encourage you to do so!
PS1: We will soon also add there a paper with more technical & factual background information.
PS2: I am very thankful to the team who prepared this intervention within TILT's Internet Policy Clinic. The brief (and parts of this blog) were put together by three students of Tilburg Law School (Dane Carlson, Giannis Ntokos and Katerina Psychogyiou) under supervision of Martin Husovec (Assistant Professor at Tilburg Law School, TILT&TILEC) and Russian scholars: Elena Buiantueva, Natalia Chuyko and Ruslan Nurullaev. The Clinic also benefited from the assistance of Tommaso Crepax (lecturer at TILT).