VLADIMIR KHARITONOV v. RUSSIA JUDGMENT
3dl.am case, (BGH) I ZR 3/14). Consistent with international standards, the
law should provide for the following procedural standards: (i) blocking
should be ordered by a court or an independent adjudicatory body; (ii) ISPs
and other interested parties should be given the opportunity to intervene in
proceedings in which a blocking order is sought; (iii) users and victims of
collateral blocking should have the right to challenge, after the fact, the
blocking order; (iv) anyone attempting to access the blocked website should
be able to see the legal basis and reasons for the blocking order and
information about avenues of appeal.
31. The European Information Society Institute, a Slovakia-based
non-profit organisation focusing on high-technology law, pointed out that
Russia’s implementation of website blocking led to collateral website
blocking on a massive scale and lacked adequate safeguards against abuse.
As of 28 June 2017, 6,522,629 Internet resources had been blocked in
Russia, of which 6,335,850 – or 97% – had been blocked collaterally, that is
to say, without legal justification. At various times, due to collateral
blocking, Russian users were not able to access widely-used Internet
services such as Google, Wikipedia, Web Archive, Reddit, Amazon Web
Services and Disney. In addition, the Russian blocking system had
vulnerabilities that facilitated over-blocking and abuse, such as the
possibility to change unilaterally the IP address of a blocked website to the
IP address of any other website, rendering it immediately unavailable for
Russian users. An approach to website blocking which was based on the
principle of proportionality called for an assessment of the positive and
negative effects of a blocking order in each particular case and the choice of
the method of its implementation. If it was predictable that ISPs would
choose the IP address blocking technique because of its lower cost, the State
should bear a higher burden in order to create conditions for a human-rights
compliant manner of blocking content.
32. RosKomSvoboda, a Russian non-governmental organisation
supporting open self-regulatory networks and the rights of digital users,
submitted that the legal framework for blocking online content, as it had
existed at the material time, had led to unpredictable consequences and the
untargeted blocking of websites. It had not provided an effective mechanism
for challenging blocking orders because a bona fide website owner would
discover the existence of such an order only after it had become effective.
2. The Court’s assessment
33. The Court reiterates that owing to its accessibility and capacity to
store and communicate vast amounts of information, the Internet has now
become one of the principal means by which individuals exercise their right
to freedom of expression and information. The Internet provides essential
tools for participation in activities and discussions concerning political
issues and issues of general interest, it enhances the public’s access to news
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