c) Domestic law and subsequent judicial interpretation and application must ensure that blocking orders targeting specific online services are not abusive and particularly are not used to block internet
access in general.
In addition to this, in his concurring opinion, judge Pinto de Albuquerque straightforwardly states that
in any case “blocking access to the Internet, or parts of the Internet, for whole populations or segments of
the public can never be justified, including in the interests of justice, public order or national security.”109
This assertion is based on the specific standards set by the repeatedly quoted United Nations Human Rights
Committee General Comment No. 34 and the Joint Declaration on Freedom of Expression and the Internet.
In consequence, the opinion also establishes that “any indiscriminate blocking measure which interferes
with lawful content, sites or platforms as a collateral effect of a measure aimed at illegal content or an illegal
site or platform fails per se the ‘adequacy’ test, in so far as it lacks a ‘rational connection’, that is, a plausible
instrumental relationship between the interference and the social need pursued.” Pinto de Albuquerque also
provides a thorough compilation of European standards regarding the blocking of Internet publications,
thus formulating in his view the minimum criteria for Convention-compatible legislation in this field:
a) A definition of the categories of persons and institutions liable to have their publications blocked.
b) A definition of the categories of blocking orders, such as blocking of entire websites, IP addresses,
ports, network protocols or types of use, like social networking.
c) A provision on the territorial ambit of the blocking order, which may have region-wide, nationwide,
or even worldwide effect.
d) A limit on the duration of the blocking order.
e) An indication of the “interests”, in the sense of one or more of those included in article 10 § 2 of
the Convention, that may justify the blocking order.
f) Observance of the criterion of proportionality, which provides for a fair balancing of freedom of
expression and the competing “interests” pursued, while ensuring that the essence (or minimum
core) of freedom of expression is respected.
g) Compliance with the principle of necessity, which enables an assessment to be made as to whether
the interference with freedom of expression adequately advances the “interests” pursued and goes
no further than is necessary to meet the said “social need”.
h) Definition of the authorities competent to issue a reasoned blocking order.
i)
109
A procedure to be followed for the issuance of that order, which includes the examination by the
Ahmed Yildirim v. Turkey, no. 3111/10, p. 29, ECHR 2012.
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