EISi intervenes in Kharitonov v Russia case to address the issue of over-blocking
On July, 10, 2017, European Information Society Institute filed its third-party intervention before the European Court of Human Rights in the Kharitonov v Russia case.
This case concerns collateral blocking of the applicant’s website when restricting access to illegal information. The decision of the Grand Chamber is likely to have a significant impact on the issue of over-blocking and collateral blocking of websites in Europe in general, and in the Russian Federation in particular. In accordance with the data provided by Roskomsvoboda, a Russian community project supporting freedom of information online, as of 28 June 2017, 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.
The brief was prepared by three students of Tilburg Law School (Dane Carlson, Giannis Ntokos and Katerina Psychogyiou) as a part of a Legal Clinic 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).
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.
In concluding part of the submission EISi suggests that the Court recognizes 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.
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