EISi intervenes in Flavus v Russia case to support safeguards against over-blocking
On 17 January 2018, European Information Society Institute filed its third-party intervention before the European Court of Human Rights in the OOO Flavus v Russia case and 4 other applications.
The case concerns blocking of the three major political opposition websites and other websites which were blocked directly by the telecoms regulator Roskomnadzor on behalf of Prosecutor General without a court order. The decision of the Grand Chamber will thus have a significant impact on the issue of over-blocking and safeguards against collateral blocking of websites in Europe, and especially in the Russian Federation.
The brief was prepared by three students of Tilburg Law School (Bojana Kostić, Martin Borgioli and Monika Hanych) as a part of a Legal Clinic under the supervision of Martin Husovec (Assistant Professor at Tilburg Law School, TILT&TILEC) and John Waterson (TILT lecturer).
In our submission, we address mainly (i) due process requirements, and (ii) availability of effective safeguards against collateral over-blocking. The intervention suggests that the ECHR recognizes that states are not completely at liberty to design blocking schemes and that each delegation of enforcement has to be accompanied by a number of due process and remedial safeguards. Also, the legal framework shall respect the quality of law when a blocking order is issued and emphasizes that any blocking provision should be clearly prescribed by law.
Moreover, the intervention reiterates that states should not absolve itself of an obligation to provide for an effective remedy against over-blocking by simply delegating the implementation of its measures to private parties. Finally, the owner of the blocked content should have right to have access to the court, procedural equality of arms and efficient legal remedies available.
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