The Online Russian Iron Curtain

Article 15 of the Russian Information Act as a Breach of the Freedom of Expression

Author: Rizzo Anna

Introduction

Russia is one of the most powerful countries in the World in many aspects. Of its population, approximately 116 million are internet users,1 which makes Russia the largest Internet market in Europe. Following the deeper comprehension of the potential of the Internet for Russian governmental authorities and politicians, in the early 2000s, the Russian government was able to develop in its online environment a system of online censorship, which has evolved throughout the years. Through a combination of administrative measures, constant monitoring and censoring mechanisms of the online networks, the authorities are able to block access to unwanted information published by many websites. Such online surveillance is nowadays mainly performed through different tools and methods, from blacklists of websites and intimidations to the introduction of the Roskomnadzor, the designated Federal executive body that scouts for suspect behaviour on the Internet.2

In 2006, the Russian government introduced the Federal Law “On Information, Information Technologies and Protection of Information”, or “Information Act”,3to govern the Russian online environment. Since then, the legislation has been amended many times, and it has also been subject to various criticisms due to its vagueness and broad leeway given to the authorities in blocking online content. This legislation has once again brought to light the intense criticisms of the Russian surveillance methods by the European environment and institutions, as there is a lack of transparency in the name of the right to privacy online through the means of surveillance, and there is a failure to respect the right of expression due to the presence of restrictions and censorship. For the purpose of this paper, the analysis will be on the freedom of expression.

This topic is highly relevant, as the Internet has become a necessity for everyday life. The continuous developments of this ‘new’ environment have led to the introduction of new rights and obligations, but they have also led to a broader scope of pre-existing rights, such as the right to freedom of expression and freedom of information as they now apply to the online world as well.

Since the late 1990s, the Russian government has decided to utilise the online environment in its favour, and it has not been a secret that censorships and monitoring tools have been in place since, as this has been denounced by many throughout the years. As the role of the Internet will be of even greater importance in the future, it is of utmost priority to analyse the Information Act, which regulates the online environment, and how it may infringe certain fundamental rights.

Therefore, the main research question for this paper is whether Article 15 of the Information Act is compliant with the right to freedom of expression under the ECHR. Given the extensity of the provision and its importance, the analysis will be focused on paragraphs 1 and 3 of the Article. The question will be sustained by preliminary legal questions. The first one regards the understanding of the freedom of expression in the sense of Article 10 of the European Convention of Human Rights

(ECHR). The second one is on the implementation of the right to freedom of expression in Russian legislation, in particular in the online environment, which leads to the third question on the regulation of online censorship mechanisms in the Russian Information Act. This last question presents sub questions on whether Articles 15.1 and 15.3 of the Information Act respect the freedom of expression as understood and guaranteed by Article 10 ECHR.

In writing this paper, the methodology used will be doctrinal and positivistic. The analysis of the issue at hand will be done through the usage of primary sources, in particular the relevant articles of the European Convention of Human Rights, pertinent case-law and Russian provisions, specifically the Information Act. For the latter, as the original language is Russian, an English public translation has been used. Moreover, secondary sources will be studied, such as academic writings, books and journals.

To answer the aforementioned questions, this paper proceeds in the following way: The first chapter presents an overview of Russian censorship, focusing on censorship in the online environment. Secondly, this censorship is analysed in light of the right to freedom of expression in Russia and the Information Act introduced to govern the Russian online environment, particularly Articles 15.1 and 15.3. The third chapter outlines the freedom of expression as provided by the ECHR, leading into the fourth chapter on the analysis and assessment of Articles 15.1 and 15.3 in light of the ECHR. To conclude, the paper presents an overview of the analysis and summarises the answers to the questions posed.

Chapter I – Russian Censorship

It is said that Russian censorship was born on the same day as Tsar Peter the Great issued the special decree to establish the first Russian newspaper, The St. Petersburg News,4 on 1 January 1703 to promote the Tsar’s decisions and circulate government regulations.5

In the course of modern Russian times, the State’s attention shifted to new areas,6 giving rise to new restrictions and forms of censorship.7 The birth of a new, post-communist Russia coincided with that of the Russian Internet. The first technological evidence of this new instrument became visible when news about the 1991 coup spread through the Internet channels. The Internet had the upper hand when competing with existing print publications due to its ability to offer fast-paced news: a faster and more accessible way to get across to readers, and for readers a faster way to respond.

a. Russian Internet Censorship

Twenty years later, the Russian Internet is unrecognisable. The direct State’s control and pressure, and the lack of publicly financed media outlets free of political pressures are threatening for the future of the online environment. Censorship today means much more than just state control and inspection. It pervades every aspect of Russian mass media; it moves Russian society and forms the contemporary Russian mentality.8

The political changes in the early 2000s left a mark on the Internet. 9 Russia saw a rapid expansion of Internet access fostered by the rise of political activism online. The increasing importance of the Internet was highlighted during the 2011 and 2012 anti-government protests against Putin and his government where social media played a significant role. Thus, after these events, Internet censorship grew substantially.10 Nowadays, the root cause of most forms of censorship in Russia is represented by corruption. The State has a monopoly on distribution; its total control of digital media has exerted a malicious influence. Advertising companies do not want to work with media outlets that criticize the government as that would risk ruining their relationships with the authorities.11 This goes again to show the Internet penetration by the Russian government. A new era in the regulation of the Russian Internet (RuNet) was marked by the enactment of the Internet Law.12 The legislation gave the Russian government the right to shut down, without a court order, any website failing to comply with its request to remove content considered to be harmful to minors. The government created a blacklist of online content that must be blocked and can order search engines to filter the searches. Even though the scope is to protect minors from harmful information, it gives the federal government enough authority to impose full-scope censorship, underlining the state of Internet freedom in Russia.13 To justify their actions and turn the public against the idea of an open Internet, the Russian government prolifically uses fear metaphors: they claim that foreign powers use the Internet to pursue military and political objectives against Russia, which make the environment risky and threatening. Hence, the information needs to be controlled to protect domestic interests and the principles of national security.

Following this blacklist law, another legislation was introduced giving “the Russian Prosecutor General’s Office wide-reaching powers to ban any website, if it contains ‘calls to disturbing the peace,’ ‘extremist information,’ or information about ‘unlawful rallies’”.14 Once again, the Russian government justified its actions as a shield for the Russian population from outside threats.

It is important to note that beyond these technological, physical and legal approaches to censorship, also the psychological dimension plays an important role. The Russian government maintains its legitimacy between the population with a façade of legality and democratic politics. This is done through ‘soft means’ such as disinformation, propaganda and means to manipulate and subtly influence the way that the public views online censorship and uses the RuNet, allowing the Putin government to shape the way that the Russian public views the Internet and builds legitimacy for tighter control over the information that its population has access.15

Chapter II – Freedom of Expression in Russia

a. Freedom of Expression in Russian Law

The right to freedom of expression has been included in various Russian legal documents. It has been enshrined in Article 29 of the Constitution of the Russian Federation since 1993.16 The right to freedom of information, which is an integral part of the right to freedom of expression,17 is further guaranteed by three Federal Laws introduced in the first decade of the XXI century: Federal Law No.149-FZ,18 Federal Law No.8-FZ19 and Federal Law No.262-FZ20. The connection between the right to freedom of information and the right to freedom of expression will be further elaborated in Chapter III of this paper.

The first law, the Information Act, was introduced in 2006 to outline the principle of the right to information, without, however, delineating what information should be made publicly available and what are the mechanisms to do so. This provision is fundamental for the right to freedom of expression in Russia, hence, it will be further analysed in this paper.

The other two Federal Laws were presented in 2010 following the growth of the online environment; “On the Provision of Access to Information on Activities of Government Bodies and Bodies of Local Self-Government” and “Ensuring Access to Information about the Activities of Courts in the Russian Federation”. The former explained the missing elements of the 2006 legislation, outlining what information should be made public, by whom and establishing the mechanisms. Indeed, for example, it needs to be ensured that the information posted on the Internet by government and local self-government bodies are accessible to information users.21 The latter provision extends this access of information to the activities of the courts in the broader sense, including the judiciary and judicial departments regarding general information, case-related information, procedures’ information and information on the court’s personnel.22

All of this legislation helps to define the concept of freedom of expression and information, the exercise of these rights and the ways to express, access and receive information. The Russian legislative environment is, however, unduly volatile. Amendments are often implemented, causing changes in other legal instruments and court practices. For instance, the Information Act until 2018 has been amended 31 times, which have created numerous contradictions in various legislations.23

b. Information Act

As mentioned beforehand, the 2006 Information Act is the main legislation that governs the Russian online environment and the right to freedom of expression and information. It is the primary act that defines the basis for websites blockage and content removals and it regulates almost all relevant procedural issues.24 Indeed, its purpose is the regulation of the rights included in the right to freedom of information.25

It is important to note that the definition of ‘information’ given in the legislation is quite vague as it is prescribed as ‘data irrespective of their form of presentation’,26 without any further indication of what this could signify been given, nor general requirements for it, which provide much leeway in the understanding of the concept. Furthermore, as provided in Article 8, both natural and legal persons have the right to receive and look for any type of information subject to Federal Law.27 The access cannot be restricted to, for example, normative legal acts, state of the environment and state authorities’ activities, but needs to be extended to the actions of state authorities and local self government bodies.28 Indeed, it is fundamental to ensure transparency and free access to information concerning the activities of the government and local self-government bodies.29 Nevertheless, in certain instances, restrictions are allowed: when it is established by federal laws to protect the constitutional system, morality, health, rights and legitimate interests of citizens, ensure state security, observe the confidentiality of the information, and protect state secrets. 30 Russian legislation provides nearly no rules for blocking, filtering and taking down illegal online content. This Federal Law is the only one that establishes how the Roskmonadzor31 may supervise over media-like services in Russia, which include social media, search engine services, news aggregators, messengers and online audio-visual services.

c. Information Act Amendments

The Information Act has been amended more than thirty times since it entered into force. One of the firsts amendments introduced Article 15.1, 32 which announced the “Unified Register”33, or Blacklist. Such a list is to be created and maintained by the Roskomnadzor.34 In particular, the agency is authorised to blacklist websites containing content related to health or morals, such as child sexual abuse materials, information about how to produce or use drugs, psychotropic

substances or their precursors and how to commit suicide or calls to commit suicide.35 To fulfil this last purpose, the agency has been actively blocking access to web pages that promote suicide among minors.36 Notably, these blockages follow resolutions of executive bodies authorized by the Russian Government, and not following a Court order, which is only an alternative method for declaring certain information prohibited.37 Once the relevant entities are informed that a domain name and/or URL is recorded in the Blacklist, the decisions taken pursuant to Article 15.1 may be challenged by entities, such as internet site owners, hosting providers and communications operators, within three months from the decision’s rendering.38 In the event of a failure to act in accordance with the Register operator, the network is included in the Register, leading to restrictions of the Internet website.39

Other legitimate aims recognised by the Russian authorities for blocking are the protection of territorial integrity, public safety and national security. The importance of the protection of “national interests” arises from “internal and external informational threats” in online and offline sources regarding illegal content, one of the most used grounds to justify the blocking, filtering and taking down of internet material.40 Another reasoning frequently used is extremism, as stated in Article 15.3 of the Information Act and defined in Article 1 of the Federal Statute “On Counteracting Extremist Activity”,41 which interpretation has always been quite broad.

Article 15.3 was introduced through the 28 December 2013 amendment, which also added Article 15.1.13.42 Article 15.3 allows blocking access to websites or their content under the direct order of the Prosecutor General or its deputies if they contain information calling for a mass disorder, extremist activities, or “participation in mass events held in breach of the established procedure”.43 The issue that arises from such provision is its lack of clarity, which may cause excessive application; it may allow for the removal of online information on peaceful rallies or the blocking of access to websites containing such information. Furthermore, differently from Article 15.1, actions may be taken without an effective court decision as the provision clearly states that actions may be taken following breaches discovered by federal and regional State authorities, municipal authorities, organisations or citizens and notified to the Prosecutor General44.45

Chapter III – Freedom of Expression in the ECHR

As mentioned before, the right to receive and impart information is an integral part of the fundamental right of freedom of expression46 as recognised by Resolution 59 of the United Nations General Assembly (UNGA),47 Article 19 of the Universal Declaration of Human Rights (UDHR),48 Article 19 of the International Covenant on Civil and Political Rights (ICCPR)49 and Article 10 ECHR.50 In the drafting of the UDHR, the rights to freedom of information and freedom of expression were guaranteed by Article 19 together with the right to freedom of opinion, access to information, and of the media.51 The first instrument that gave effect and bound some of the rights stated in the UDHR is the ECHR, to which the Russian Federation is a signatory. Leading to the inclusion of the freedom of expression in the Convention as Article 10. In light of the Declaration, Russia agreed to secure the recognition and observance of human rights and the need to maintain and fully realise them and fundamental freedoms.

Human rights transcend basic personal freedoms by shaping a free and all-embracing coexistence. 52 They are interdependent and indivisible, which means that all rights are equally important and that to be fully enjoyed, they need each other. Often, the fulfilment of one right depends, wholly or partly, on that of others.53 Particularly, freedom of expression is an essential “enabler” enlarged with an idealistic approach for other rights,54 which goes beyond its scope by assessing the degree of other human rights’ enjoyment: civil and political rights, such as the right to freedom of assembly and association, and economic, social and cultural rights, such as the right to education.55

Moreover, the right to freedom of expression itself is multifaceted56 and must be ensured in two

directions: inwardly, to seek and to receive information and ideas, and outwardly, to impart information.57 This right can be regarded as a foundation of a “democratic society” for the full enjoyment of other human rights58 and one of the basic conditions for the progress and development of every man.59 Therefore, it should be promoted universally and, its enjoyment should be ensured in domestic law.60

Furthermore, the forms of expression and types of information pursuant to Article 10 vary. They are not strictly of a political nature, but include, for example, an artistic expression such as a painting,61 information of a commercial nature62 and publication of photographs.63 Thus, its range of applicability is broad and even applies to the context of the Internet, especially due to the Internet’s importance for the fulfilment of other rights,64 such as the right to access education.65 The Court has often noted that online user-generated activity is an unprecedented platform for the exercise of freedom of expression 66 and has recognised the importance of the Internet in facilitating the dissemination of information in general.67 Due to its growing use as a tool to access information, the application of Article 10 to the Internet and its communications is necessary,68 regardless of the message conveyed, its purpose and the medium; such as YouTube69 and Google Sites.70

It must be remembered that this freedom is not absolute and can be restricted. Paragraph 2 of Article 10 defines the broad range of legal rights that may justify limitations. The list includes vague concepts, such as morals, as well as rights recognised in other articles of the Convention, such as essential principles; independence and impartiality of the judiciary and other concepts such as national security and the prevention of crime. It must be recognised that for the restrictions to be legitimate, state interferences with the right to freedom of expression may be done only in pursuit of

a legitimate purpose when prescribed by law and necessary in a democratic society.71 The so-called ‘three-part’ test of Article 19(3) ICCPR on restrictions includes:

(a) Principle of predictability and transparency;

(b) Principle of legitimacy;

(c) Principles of necessity and proportionality72

First of all, the restriction must be provided by law, which means that it needs to be clear, accessible and predictable to everyone. Secondly, it must pursue one of the purposes set out in paragraph 3, namely: if it is necessary to protect the rights or reputations of other people, and if it is necessary to protect the national security or ordre public, or public health or morals.73 Lastly, it must be proven as necessary and the least restrictive means required to achieve the purported aim.74 Therefore, States have negative obligations to defend freedom of expression, meaning that authorities must not impose disproportionate and impossible burdens.

This would lead to the conclusion that censorship is forbidden under the ECHR, but the Court has had different interpretations holding that no absolute exclusion exists, but the Member States must be careful and interfere with the right only when relevant, necessary and proportionate.75 As provided by the general understanding of Article 10, for an online blocking measure to be justified, there needs to be a legal framework that allows for such restriction76 and for the various interests at stake to be weighed and proportionate.77 Therefore, it is fundamental for the three-pronged test:

legality, legitimacy and proportionality, to be applied to Internet restrictions. Nevertheless, this test is not straightforward, indeed, during the last few years the European courts, ECtHR and Court of Justice of the European Union (CJEU), have been increasingly confronted with disputes about the Internet and social media. The percentage of higher court cases involving fundamental rights reasoning is 15% and of these cases, 83% regarded the protection of freedom of expression.78

Chapter IV – Analysis of Article 15 Under the ECHR

The importance of the Internet in exercising the right to freedom of expression has been expressed in the European Union by its institutions and, more importantly, by the ECtHR and its judgements.

a. Relevant ECtHR Judgements on Article 15 of the Information Act

The ECtHR recognises the freedom to receive and impart information to everyone not only in the content of the information but also for the means of its dissemination.79 Websites blockage is to be considered an interference of the rights to convey information and to receive it,80 because it has consequences in Internet accessibility which engage the responsibility of the State under Article 10.81

However, interferences are allowed under certain conditions. In Russia, several cases have arisen in this field concerning the Information Act; famous ones are those of Vladimir Kharitonov v Russia,82 OOO Flavus and Others v Russia,83 Engels v Russia84 and Kablis v Russia.85

The first case, Vladimir Kharitonov v Russia, concerns the blockage of access to the applicant’s website due to a blocking order issued for another website. The applicant’s website shared with the latter the same IP address because the hosting provider hosted multiple websites with the same IP address but different domain names.86 Due to the Federal Drug Control Service’ decision to put on the Blacklist the IP address because of the information provided by another website, all the websites connected to it, including that of the applicant, were blocked.87

The second judgement, OOO Flavus and Others v Russia concerns the wholesale blocking of three online media outlets due to alleged unlawful content featured on some webpages. The Prosecutor General required the Roskomnadzor to block the applicants’ online media websites for publishing information of “public events of an unlawful nature in Russian territory”.88 Following the notice, access to the applicants’ websites was blocked, and the web hosting service providers were requested to take down the offending material for containing “calls for extremist activities”. However, the notices listed the domain name of the targeted websites rather than the webpage containing the prohibited content,89 resulting in the wholesale blocking of entire websites.90 On the topic of prohibited content, in Engels v Russia the ECtHR ruled on the Russian courts’ decision, after a district prosecutor’s request, that the information on unfiltered-browsing technologies available from the applicant’s websites was to be considered prohibited. The website in question provided in one of its pages a list and a short description of private communications’ restrictions and Internet content filters’ bypassing, such as virtual private networks (VPN), considered by the prosecutor as extremist material.91 Without informing the applicant about the proceedings, a court granted the prosecutor’s application by declaring the information published illegal and ordered the Russian agency to block access to the applicant’s website.92 Hence, following the Roskomnadzor request, the applicant deleted the illegal content to prevent his entire website from being blocked.93 Lastly, in Kablis v Russia, one of the applicant’s complaint regarded the breach of his right to freedom of expression.94 Mr. Kablis had published on his Internet blog a copy of his notification to the municipal authorities to hold a public gathering in the main town square95 to “discuss the arrest of the Komi Republic government”.96 He then published the town administration refusal to approve the venue behind the Lenin monument and enclosed a copy of the decision.97 Later, the applicant also published a post on VKontakte, calling for participation in the public discussion. Following an order by the Roskomnadzor and a deputy Prosecutor General and pursuant to Article 15.3(1) of the Information Act, the applicant’s account was blocked by the VKontakte administrator for campaigning for an unlawful public event.98 The applicant then published a third entry on his blog asking what would happen if many people came to the “people’s assembly”, which led for the administrator of the Internet site hosting the applicant’s blog to inform him that access to the three blog entries had been restricted on the order of the Prosecutor General because containing calls to participate in public events.99

These cases were brought in light of websites blocking by Russian authorities on the basis of Article 15 of the Information Act, and all four were found by the Court in its judgements in violation

of Article 10 ECHR: for not being clear and predictable, not setting limits for the authorities and not providing arbitrary intervention's protection.

b. Analysis of Article 15 of the Information Act

In the aforementioned case-law, the ECtHR ruled on the lawfulness of the Internet restrictions taken place in the Russian territory pursuant to Article 15 of the Information Act. It recognised that the freedom of expression and the freedom to receive and impart information 100 may be restricted following certain conditions, which were analysed by the Court in the four judgements taken into consideration in light of Article 15. According to the Committee of Ministers, to ensure that the freedom of information on the Internet restrictions does not go beyond Article 10,101 it is of utmost importance for the Member States to maintain and enhance legal and practical measures to prevent censorship.102 To promote the creation of online content, it is necessary for individuals to not be affected by general blocking or filtering measures by public authorities.103 Indeed, Internet filters restrict the exercise of the freedom of expression and information unless they respect Article 10(2).104

Notably, in the assessment of all four judgements, the Court presented the blocking measures in question as “interference by a public authority” of the right to freedom of expression, of which, under Article 10, the freedom to receive and impart information and ideas is an integral part.105 For such interferences to not be considered in breach of Article 10 the conditions to be met are:

(i) they are ‘prescribed by law’;106

(ii) they pursue one or more of the legitimate aims as referred in Article 10(2); (iii) they are ‘necessary in a democratic society’ to pursue those aims.107

The concept of ‘legitimate aim’ has been clarified by the Commissioner of Human Rights as entailing interests of public safety, for the prevention of disorder or crime, territorial integrity or public safety, national security, for the protection of health or morals and the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. Although the list’s interpretation and scope may evolve, it is exhaustive.108 Hence, the assessment of the legal bases’ quality is important. Furthermore, the term ‘prescribed by law’ was explained as referring to the statutory basis of the domestic law, as well as the accessibility and foreseeability of the law: it needs to be sufficiently precise for the individual to be able to foresee the possible consequences. Moreover, as the freedom of expression is a fundamental right, it is of utmost importance for the law to protect from arbitrary interferences by public authorities and clearly state the scope of any discretion conferred on the authorities and the way it is exercised.109

b.1. Article 15.1 of the Information Act

The Court took into consideration the aforementioned conditions in its analysis of Article 15.1 of the Information Act in the judgements Vladimir Kharitonov v Russia and Engels v Russia. The provision, as explained in Chapter II, defines the categories of illegal web content susceptible to be blocked and lays down a step-by-step procedure for putting a blocking order in place.110

It must be acknowledged that provision 15.1 allows Russian authorities to target an entire website without distinguishing between legal and illegal content contained. This gives the Roskomnadzor broad leeway and extensive power, which could lead to arbitrary and excessive blockage of the online environment.111 As provided by the UN Special Rapporteur, because blocking measures are often not sufficiently targeted, they may be considered disproportionate means, even when the justification is legitimate. 112 For example, in Vladimir Kharitonov v Russia, the Roskomnadzor, under Article 15.1.9, ordered the restriction of one IP address of an offending website, blocking, as a collateral effect, the websites which shared the IP address. However, the provision does not regulate the agency’s conduct, nor it prevents arbitrary interference.113 It does not provide for the Roskomnadzor to check whether the IP address is used by more websites.114 Thus, such measure renders large quantities of information inaccessible due to its significant collateral effect, restricting the rights of Internet users such as the right enshrined in Article 10, which obligation to follow comes from the Convention and the case-law of the Convention institutions.115

In the second case, Engels v Russia, the discussion revolves around Article 15.1.5, which lists three types of decisions that may lead to the categorisation of online content as illegal, either through the decisions of authorised federal executive power bodies116 or through a “judicial decision which identified particular Internet content as constituting information the dissemination of which should be prohibited in Russia”.117 While paragraph 1 presents examples of materials that may be considered illegal, paragraph 2 does not. There is no indication given to the courts or website owners on the nature or categories of online content that could be banned. Nor it refers to other legislation, by-laws or regulations that could further explain the applicability of the article. Due to the vagueness and overly broadness of the legal provision, the foreseeability requirement is not met. Website owners, such as Mr Engels, do not have the opportunity to regulate their conduct because they cannot inform themselves in advance of what content may be considered illegal.118 This can lead to “excessive” blocking: blockage of the whole website because of a single page or file.119

From Article 15.1, it can be understood that a tribunal decision for undertaking a limitation is not mandatory by law; it is only a possible alternative. The Committee of Ministers believes that when a restriction is in place, a State needs to inform the public of the reasoning behind such decision, but, most importantly, provide the “court order authorising them and the right to appeal”. This entails that a court authorisation is always necessary before activating Internet blocking. If a decision is not implemented on the basis of a court’s decision, then it needs to be implemented by an administrative body subject to judicial review to prevent excessive blocking and any abuse of power. Notably, the assessment should determine whether the restriction is disproportionate and whether it is the least restrictive way to achieve the stated legitimate aim. 120 This concept is also sustained by the Commissioner for Human Rights of 2014 declaring the importance for governments to ensure judicial oversight to prevent possible abuses, examine the necessity, effectivity and proportionality of any blocking measure, and whether it is targeted enough to impact only on the specific content that requires blocking.121 For example, in Engels v Russia, a Russian court was involved in the restrictions’ process. However, it held filter bypassing information as prohibited information in Russia due to their role as enablers as they might give access to extremist content on other websites. The court did not establish as illegal the technologies themselves or their dissemination.122 Hence, such suppression is to be considered an interference for the access of all content, an “excessive” blocking. The absence of a specific legal basis in domestic law rendered the measures based on the provision arbitrary.123 Indeed, it is acceptable for States to increasingly base their blocking on specific laws, but the grounds for blocking should be clear. The provision containing vague expressions, such as ‘extremism’ and ‘propaganda’ present in the Russian Information Act, cannot be considered legitimate for blocking because it does not provide clarity on how these terms refer to a specific legitimate goal under Article 10(2). It is necessary for these provisions to explicitly explain to which form of extremism or propaganda it is referred.124

Another consideration that needs to be drawn from Article 15.1 is its lack of safeguards against abuse and lack of transparency. The Roskomnadzor provides a search tool for anyone to check whether a website has been blocked, providing the issuing body, the legal basis, date and number of the blocking decision. Nevertheless, it does not give access to the text of the blocking decision, nor it provides justification for the measure nor information about the appeal. And the obligation to notify third-parties suffering collateral effects from the restriction is not provided in Article 15.1. Thus, lacking measures to recur to an appeal, they do not have access to the blocking decision. 125 The challenge to the court’s decision through appeal is difficult, if not impossible, not only to third-parties but also to website owners themselves because the blocking decision does not give any advance notification to the parties whose rights and interests are likely to be affected.126 However, it is of utmost importance for citizens to be given the possibility of challenging the filtering mechanisms, which means that States should establish a minimum level of information for users to enable them to identify when, how and the reasoning behind the filtering’s activation. There should be guidance to the users on how the blocking measures’ criteria work.127 Thus, filtering mechanisms should be referred to specific and clearly identifiable content, as contested by Mr Engels, and Internet users should be informed about any foreseen measures to remove content or to deactivate their account. Henceforth, the information given should be accessible, clear and precise on the facts and on the grounds for which the measures are taken to remove or deactivate the contested content. This includes the legal provisions on which they are based and other elements used to assess the proportionality and legitimacy of the aim pursued.128

Other than the lack of prior notification to the parties, the Roskomnadzor, according to the Information Act, does not have to provide a prior impact assessment of the blockage. However, to ensure the effectiveness and proportionality of the filters with the restrictions’ purpose and necessity and their necessity in a democratic society, an assessment should be made before and during the implementation for the unreasonable blocking of content to be avoided.129

It can be established that the provision in question cannot be considered as a legitimate legal framework. The interferences resulted from the application of the procedure under Article 15.1 of the Information Act do not satisfy the foreseeability requirements under the Convention and do not establish safeguards to protect Union citizens from excessive and arbitrary effects of blocking measures to which they are entitled to by the rule of law in a democratic society. Therefore, interferences pursuant to Article 15.1 cannot be considered ‘prescribed by law’ and cannot be accepted as not violating Article 10 ECHR.130

b.2. Article 15.3 of the Information Act

The second article considered by the ECtHR in respect of the freedom of expression in Article 15.3 of the Information Act. The provision allows the Prosecutor General or his deputies to order the blocking of a website or webpage containing calls for, among other things, participation in public events held in breach of the established procedure131 and content containing calls for mass disorder.132

However, issues have arisen of foreseeability and lack of legitimate aim and necessity in a democratic society, interfering with the right to freedom of expression, which was analysed in dept in Kablis v Russia.133 In situations of Internet access restrictions, as previously stated for Article 15.1, Member States should ensure for their legal framework to be strict and predictable.134 Any measure taken to block or restrict access to Internet content or platform has to comply with the conditions of Article 10 regarding the legality, legitimacy and proportionality of restrictions.135 The law in question needs to help the applicants regulate their conduct and protect them against arbitrary interference:136 insurance of control over the bans and effective judicial review to prevent any abuse. Hence, the measure needs to weigh the competing interests at stake and strike a balance, establishing precise and specific rules regarding the application of preventive restrictions on freedom of expression.137 Blocking justifications provided in an overly broad and unclear manner are seen as one of the causes for content to be blocked arbitrarily and excessively, violating States’ obligations under international human rights law, namely freedom of expression in this case.138 In these regards, the phrase “public events held in breach of the established procedure” of Article 15.3 is too broad and vague. It lacks interpretation by the Supreme or Constitutional Courts, examples of its restrictive interpretation and application in administrative and judicial practice given by the Government. This suggests that anything that may be considered a breach can be seen as a ground for the Prosecutor General to block access to the content posted on the Internet, and such access to posts can be blocked, for example, because it calls for participation in a public event at a location not approved by the authorities.139 Therefore, no matter how trivial or innocuous a public event is, the Prosecutor General may ask for restrictions without having to establish a risk of disorder or of any nuisance to the others’ rights.140 Due to such vagueness and broadness and the consequential implication that state control authorities, Roskomnadzor and prosecutors have knowledge of absolute truth, it is needed for article 15 of the Information Act to meet International and European criteria by being clearer in its wording and more consistent with the requirements of legality, necessity and proportionality under Article 19(3) ICCPR and Article 10(2) ECHR.141

Considering these criteria, Article 15.3 does not require a necessity assessment when an entire website is blocked rather than of specific information published on it. Such obligation, however, comes from the Convention and case-law. In particular, one condition required is for the authorities to take into consideration that a measure rendering large quantities of information inaccessible is bound to restrict Internet users’ rights and to have a collateral effect on legal material.142 Nonetheless, it follows that Article 15.3 gives the Prosecutor General and his deputies wide powers in applying prior restraint measures for the ordering and the scope of the blocking measure.143 Article 15.3.2 sets out requirements for the contents of Roskomnadzor’s notifications, one of which is the specification of the URL of the web page permitting illegal content to be identified. However, the Roskomnadzor has despatched notifications not respecting such requirement, for example, in OOO Flavus and Others v Russia the website’s entire domain was listed, rather than the particular webpage. This arbitrary act by the Russian authorities gives rise to two issues: that the information that needs to be taken down cannot be identified and that this failure deprives the applicants of a remedy.144 Moreover, it needs to be noted that the wholesale blocking of access to a website rather than a webpage is to be considered an extreme measure. Making inaccessible not only the content regarded as illegal but also the content not seen as such extends the scope of the blocking order beyond the target,145 which would require its justification with another order.146

To meet the criteria of Article 10(2) it is necessary for the filtering mechanisms’ decision to be reviewed by an independent and impartial tribunal or regulatory body and for the interested parties to have access to a court in accordance with Article 6 ECHR.147 Member States are encouraged to create “voluntary, fair, independent, accessible and effective bodies or procedures for out-of-court mediation as well as mechanisms for arbitration of disputes concerning content-related matters.”148 And the only way for the Internet access to be disconnected against a person’s will is if it is done through a Court decision or under its oversight. 149 However, Article 15.3 lack such an effective judicial review. 150 Challenging the blocking measure through judicial review is difficult, if not impossible. The provision gives a one-month time-limit for the examination of the judicial review complaints, to which needs to be added the waiting period of the approval by the regional or municipal authorities of the statutory prohibition on campaigning for participation in a public event. 151 Therefore, a complaint brought against a blocking measure is not guaranteed to be decided before the planned date of an event if we are considering a prior restraint case, such as that of Kablis v Russia and OOO Flavus and Others v Russia. Hence, the provision must allow the possibility to obtain a judicial review of the blocking measure before the date of the public event in question, making the information contained in the post is meaningless.152

Other than the lack of procedural safeguards to protect the citizens from arbitrary interference in Article 15.3, the provision in question does not require the Prosecutor General’s decision and the Roskomnadzor’s orders to give notice to the parties whose rights and interests are affected. As analysed by the Court for Article 15.1, this provision also does not require a prior impact assessment of the blockage nor for a justification of their immediate enforcement which does not give the parties involved the possibility to remove the content considered illegal or to apply for a judicial review of the decision.

Therefore, it can be found that a blocking procedure provided for by Article 15.3 lacks the necessary guarantees against abuse required by the Court’s case-law for prior restraint measures, in particular tight control over the scope of bans and effective judicial review to prevent any abuse of power. 154 Furthermore, the provision not only does not provide safeguards against arbitrary interference, but it also does not require such interference to be justified as necessary and proportional in light of the freedom of expression online. This means that the Governmental authorities do not have to analyse whether the same result could be achieved by less intrusive means, nor have to determine whether the blocking measure strictly targets the illegal content and has no arbitrary or excessive effects.155

In light of the above considerations, interference resulting from the application of the procedure under Article 15.3 of the Information Act have to be considered unlawful. The provision has excessive and arbitrary effects156 and lacks the necessary guarantees against abuse required by the Court’s case-law for prior restraint measures157 and to which Union citizens are entitled by the rule of law in a democratic society. Thus, interferences with this legal basis do not fall in the justification under Article 10(2).158 .

Conclusion

Like the Internet itself, censorship also adapts. Nowadays, it is particularly malicious as it is less transparent, less observable, and more powerful.159 To bypass censorship and empower citizens to challenge their authoritarian governments, the supported means are the openness of online environments and the growth of Internet access. In these regards, the Russian government has been one of the main counterclaimants, defining the Internet as a threat and proposing the need for Internet control to protect Russian citizens from internal and external hazards.160

In the sense of Resolution 59 of the UN General Assembly, Article 19 UDHR and Article 10 ECHR, the freedom of expression is a fundamental human right and the touchstone of all the freedoms and for any democratic society. Often, human rights are interdependent and indivisible, which means that they are equally important and that to be fully enjoyed, they need each other. Rights transcend basic personal freedoms, and freedom of expression is an essential “enabler”. It goes beyond its scope by assessing the degree of other human rights’ enjoyment, such as the right to freedom of assembly and association and education. Moreover, the freedom of expression can be understood to include the right to freedom of information; because it must be ensured inwardly, to seek and receive information and ideas, and outwardly, to impart information. Because it is multifaced, its range of applicability is broad and even applies to the context of the Internet, which has a facilitating role in the dissemination of information.

The Russian government incorporated such right in various legal documents, nevertheless, throughout the years the system of online censorship in Russia has increased, particularly following the rise of the Putin administration. Through a combination of monitoring and censoring mechanisms of the online environment, the authorities block access to information considered illegal published on

certain websites. These mechanisms are mainly regulated by the 2006 Information Act, which governs the online environment and the right to freedom of expression and information in Russia. However, these online censorships tools contend the concept of freedom of expression as understood and guaranteed by the aforementioned legal sources. Even though a legal framework for the right of freedom of expression has been created, there still is a gap in its practical implementation: arbitrary implementation, lack of oversight and administrative barriers. More specifically, Articles 15.1 and 15.3 of the Information Act, analysed in this paper, contend the right to freedom of expression as protected by the ECHR.

Article 15.1 establishes the domain names and URLs enabling information considered illegal. Such a list, the Blacklist, is monitored by the Roskomnadzor, which scouts for suspect or illegal behaviour online with the purpose of blocking or deleting it, thus, shrinking freedom of expression in the online environment. These blockages either follow resolutions of executive bodies authorized by the Russian Government or those of a Court order, which is only an alternative method. Furthermore, the vague and broad wording of the Article allows for arbitrary and excessive blockage

of the online environment, such as blockage of the whole website because of a single page as in Engels v Russia or restriction of one IP address instead of the specific offending website as in Vladimir Kharitonov v Russia. Moreover, the provision lacks safeguards against abuse and transparency as it does not require prior notification to the parties whose rights and interests are affected, making it difficult for website owners and third-parties to challenge blocking decisions.

Article 15.3, added through the amendment of the Information Act of 28 December 2013, similarly to Article 15.1, presents overly broad and vague phrasing. Indeed, the wording may suggest that anything that may be considered a breach can be seen as a ground for the Prosecutor General to block access to online content, no matter the triviality of the content. Furthermore, the lack of foreseeability, legitimate aim and necessity of the legislation interferes with the right to freedom of expression. There is no protection for the interested parties for the regulation of their conduct and the protection against arbitrary interference through judicial review, for example. Moreover, the lack of necessity assessment, such as the entire website blockage rather than specific information published on it of OOO Flavus and Others v Russia, may lead to excessive blockage, with the consequential restriction of Internet users’ rights.

In conclusion, it can be established that in light of the right to freedom of expression as provided by Article 10 ECHR, Articles 15.1 and 15.3 of the Information Act cannot be considered as legitimate legal frameworks. The Internet interferences resulted from the application of these articles do not satisfy the Convention’s requirements and do not establish safeguards to protect European citizens from excessive and arbitrary effects of blocking measures, to which they are entitled to by the rule of law in a democratic society. Therefore, interferences pursuant to Articles 15.1 and 15.3 cannot be considered ‘prescribed by law’ and violate Article 10 ECHR.

Annexes

Article 15.1 of the Information Act

The Comprehensive Register of Domain Names, Indications of Site Pages on the Internet and Network Addresses Enabling to Identify the Sites on the Internet Whose Dissemination in the Russian Federation Is Prohibited.

1. For the purpose of restricting access to the Internet sites containing information whose dissemination in the Russian Federation is prohibited, the comprehensive automated information system "The Comprehensive Register of Domain Names, Indications of Site Pages on the Internet and Network Addresses Enabling to Identify the Sites on the Internet Whose Dissemination in the Russian Federation Is Prohibited" shall be created (hereinafter referred to as the register).

2. The following shall be included in the register:

1) Domain names and/or indications of site pages in the Internet network containing information whose dissemination in the Russian Federation is prohibited;

2) Network addresses enabling to identify the sites in the Internet network containing information whose dissemination in the Russian Federation is prohibited.

3. The register shall be created, formed and kept by the federal executive power body authorised by the Government of the Russian Federation in the procedure established by the Government of the Russian Federation.

4. The federal executive power body exercising the functions of control and supervision in respect of mass media, mass communications, information technologies and communications may engage in the procedure and in compliance with the criteria defined by the Government of the Russian Federation for forming and keeping the register by the register's operator, this being an organisation registered on the territory of the Russian Federation.

5. As grounds for including in the register the data cited in Part 2 of this article shall be deemed: 1) Decisions of the federal executive power bodies authorized by the Government of the Russian Federation which are adopted in compliance with their scope of authority in the procedure established by the Government of the Russian Federation in respect of the following which can be disseminated through the Internet:

a) Materials with pornographic images of minors and/or announcements about engaging minors as performers for participation in entertainment events of pornographic nature;

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b) Information about the ways and methods of developing, making and using narcotic agents, psychotropic substances and their precursors, places where such agents, substances and their precursors can be acquired, about the methods and places of cultivating plants containing narcotic agents;

c) Information on ways of committing suicide, as well as calls for committing suicide; d) Information about minors being victims of unlawful actions (omission to act), whose dissemination is prohibited by federal laws;

e) Information which violates the provisions of Federal Law No. 244-FZ of December 29, 2006 on the State Regulation of the Organisation and Conduct of Gambling and on Amendments to Some Legislative Acts of the Russian Federation and of Federal Law No. 138-FZ of November 11, 2003 on Lotteries concerning ban on the organisation and conduct of gambling and lotteries by means of the network "Internet" and other communication means;

2) An effective court decision on declaring the information disseminated through the Internet as the one whose dissemination in the Russian Federation is prohibited. 6. The decision on including into the register of domain names, indications of site pages on the Internet and network addresses enabling to identify the sites on the Internet whose dissemination in the Russian Federation is prohibited may be appealed against with court by the Internet site owner, hosting provider and communications operator engaged in rendering the services involved in providing access to the Internet within three months since the date when such decision is rendered. 7. Within 24 hours as from the time of receiving from the register operator a notification on the inclusion of a domain name and/or a page indication on the Internet in the register the hosting provider is bound to inform of it the Internet site owner being serviced by it and to notify him of a need for immediate deletion of the Internet page containing information whose dissemination in the Russian Federation is prohibited.

8. Within 24 hours as from the time of receiving from the hosting provider a notice about the inclusion of the domain name and/or the Internet page indication in the register the owner of the Internet site is bound to delete the Internet page containing information whose dissemination in the Russian Federation is prohibited. In the event of the refusal or inaction of the owner of the Internet site, the hosting provider is bound to restrict access to such Internet site within 24 hours.

9. In the event of failure of the hosting provider and/or the Internet site owner to take the measures cited in Parts 7 and 8 of this article, the network address enabling to identify the Internet site containing information whose dissemination in the Russian Federation is prohibited shall be included into the register.

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10. Within 24 hours as from the time of inclusion into the register of the network address enabling to identify the Internet site containing information whose dissemination in the Russian Federation is prohibited, the communications operator engaged in rendering the services involved in providing access to the Internet is bound to restrict access to such Internet site.

11. The federal executive power body exercising the functions of control and supervision in respect of mass media, mass communications, information technologies and communications or the register operator engaged by it in compliance with Part 4 of this article shall delete from the register the domain name, the Internet page indication or the network address enabling to identify the Internet site on basis of an application of the Internet site owner, hosting provider or communication operator engaged in rendering the services involved in providing access to the Internet at the latest within three days as from the date of such application after taking measures aimed at deleting information whose dissemination in the Russian Federation is prohibited or on the basis of an effective court decision on the reversal of the decision of the federal executive power body authorized by the Government of the Russian Federation on the inclusion into the register of the domain name, the Internet page indication or the network address enabling to identify the Internet site.

12. A procedure for interaction of the register operator with the hosting provider and a procedure for obtaining access to the information contained in the register by the communication operator engaged in rendering the services involved in providing access to the Internet shall be established by the federal executive power body authorized by the Government of the Russian Federation.

13. The procedure for restricting access to Internet websites envisaged by the present article shall not be applicable to the information to which access is subject to restriction in the procedure envisaged by Article 15.3 of the present Federal Law.161

Article 15.3 of the Information Act

Procedure for Restricting Access to the Information Disseminated in Breach of a Law.

1. If information disseminated through telecommunication networks, including the Internet, containing calls for mass disorder, extremist activities or participation in mass (public) events held in breach of the established procedure has been discovered – including as a result of a notification by the federal State authorities, the regional State authorities, the municipal authorities, organisations or citizens – the Prosecutor General of the Russian Federation or his deputies shall order the federal law

enforcement authority supervising the mass media, mass communications and information technologies to take measures to restrict access to information media distributing that information. 2. On the basis of the order mentioned in subsection 1 above, the federal law-enforcement authority supervising the mass media, mass communications and information technologies shall immediately:

1) Order ... the service providers to take measures to restrict access to the information medium, such as a website, or to the information published on it containing calls for mass disorder, extremist activities or participation in mass (public) events held in breach of the established procedure. The order must mention the domain name of the website, the network address and the uniform resource locator (URL) of the webpage permitting identification of the information;

2) Identify the host service provider or person hosting the information medium on a telecommunication network such as the Internet or providing services to the owner of the website containing calls for mass disorder, extremist activities or participation in mass (public) events held in breach of the established procedure;

3) Send to the host service provider or person mentioned in subparagraph 2 above an electronic notification in Russian and English about a breach of the information distribution rules, mentioning the domain name and the network address permitting identification of the website containing calls for mass disorder, extremist activities or participation in mass (public) events held in breach of the established procedure, the URL of the webpage permitting identification of such information, and an order to delete the information;

4) Record in a special electronic register the date and time when the notification was sent to the host service provider or person mentioned in subparagraph 2 above.

3. Upon receipt of the order to take measures to restrict access from the federal law enforcement authority supervising the mass media, mass communications and information technologies, the communications service provider permitting access to the Internet telecommunications network must immediately restrict access to the information medium, such as a website, or to information published thereon and containing calls for mass disorder, extremist activities or participation in mass (public) events held in breach of the established procedure.

4. Within twenty-four hours of receiving the notification mentioned in subsection 2(3) above, the host service provider or person mentioned in subsection 2(2) above must inform the owner of the information resource about the notification and that it is necessary to immediately delete the information containing calls for mass disorder, extremist activities or participation in mass (public) events held in breach of the established procedure.

5. If the owner of the information medium has deleted the information containing calls for mass disorder, extremist activities or participation in mass (public) events held in breach of the established procedure, he must send a notification to the federal law-enforcement authority supervising the mass media, mass communications and information technologies. Such notification may be sent electronically.

6. Upon receipt of the notification mentioned in subsection 5 above, and after verifying its authenticity, the federal law-enforcement authority supervising the mass media, mass communications and information technologies must immediately send a notification to the communications service provider permitting access to the Internet telecommunications network that it may reopen access to the information medium, such as a website.

7. Upon receipt of the notification mentioned in subsection 6 above, the communications service provider shall immediately reopen access to the information medium, such as a website.162

Article 1 of the Extremism Law

General Terms

For purposes of the present Federal Law, the following terms are adopted:

Extremist activity (extremism)

1. Activity of social and religious associations, or other organizations, whether through the mass media or through individuals’ premeditated organization, preparation and execution of actions directed at the:

▪ Forceful change of the fundamental constitutional structure and destruction of the integrity of the Russian Federation;

▪ Undermining the security of the Russian Federation;

▪ Seizure or appropriation of commanding authority;

▪ Creation of illegal armed forces;

▪ Carrying out terrorist activity;

▪ Incitation of social, racial, nationalistic or religious animosity;

▪ Debasement of national dignity;

▪ Creation of massive disorder, hooligan activities, and acts of vandalism motivated by ideological, political, racial, nationalistic or religious hatred or hostility, or otherwise motivated by hatred or hostility directly in relation to a social group;

▪ Propaganda of exclusivity, advocating either superiority or inferiority of citizens on the basis of religion, social, racial, national, religious or linguistic affiliation;

2. Propaganda and public demonstration of Nazi paraphernalia or symbolism or paraphernalia or symbolism similar enough to be confused with Nazi paraphernalia or symbolism; 3. Public summons to the above-indicated activities or the commission of such actions; 4. Financing assistance in the commission or accomplishment of the above-indicated actions, including providing the means for accomplishment of such activities through financial means, real estate, educational, polygraphic or material or technical resources, telephone, fax or other means of communication, informational services, or other types of material or technical resources;

Extremist Organization

A social or religious organization, or other organization, in relation to which a court has issued a decision on the liquidation or prohibition of activities in connection with the commission of extremist activity, which has entered into force based on the foundations provided in the present Federal Law. Extremist materials

Documents prepared for publication or information in other forms, encouraging extremist activity, either supporting or justifying the necessity for carrying out such activity, including works of the leaders of the National-Socialist Workers Party of Germany, the Fascist Party of Italy, publications supporting or justifying national and (or) racial supremacy, either supporting or justifying the practice of committing armed or other crimes directed at the complete or partial destruction of any social, national, ethic, racial, or religious group.163

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S, Encyclopedia of Contemporary Russian Culture (Routledge 2007)

<http://search.ebscohost.com.proxy

ub.rug.nl/login.aspx?direct=true&db=nlebk&AN=358599&site=ehost-live&scope=site> accessed 30 March 2021

Reports

ARTICLE 19 ‘The Right to Know. Report by Team 29 about access to information in Russia’, (2018) <https://www.article19.org/wp

content/uploads/2018/12/Opening_up_Russia_RTI_report_10.12.pdf> accessed on 2 April 2021

‘Команда 29 — Суды, Советы, Истории’ (Команда 29) (Russ.) ['Team 29 - Courts, Tips, Stories' (Team 29)] <https://team29.org/> accessed 6 April 2021