ENGELS v. RUSSIA JUDGMENT
safeguarded by the Convention, and indicate with sufficient clarity the scope of
any discretion conferred on the competent authorities and the manner of its
exercise (see Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 84, ECHR
2000-XI; and Ahmet Yıldırım, cited above, §§ 57 and 59).
27. The statutory basis for the interference was section 15.1 of the Information
Act. Subsection (5) of that provision lists three types of decisions by which the
Russian authorities may categorise online content as illegal. In the instant case, the
decision was made by a court of general jurisdiction in accordance with the second
part of subsection (5). Unlike the first part of that subsection, which defined seven
particular categories of online content susceptible to blocking, or the third part,
which referred expressly to libellous content, the second part allowed websites to
be blocked on the basis of a “judicial decision which identified particular Internet
content as constituting information the dissemination of which should be
prohibited in Russia”. The Court finds that the breadth of this provision is
exceptional and unparalleled. It does not give the courts or website owners any
indication as to the nature or categories of online content that is susceptible to be
banned. Nor does it refer to any secondary legislation, by-laws or regulations
which could have circumscribed its scope of application. The Court finds that such
a vague and overly broad legal provision fails to satisfy the foreseeability
requirement. It does not afford website owners, such as the applicant, the
opportunity to regulate their conduct, as they cannot know in advance what content
is susceptible to be banned and can lead to a blocking measure against their entire
website.
28. The present case illustrates the manner in which this legal provision is
capable of producing arbitrary effects in practice. Following an application lodged
by a town prosecutor, a Russian court held that the information about filterbypassing tools and software available on the applicant’s website constituted
“information the dissemination of which should be prohibited in Russia”. It did not
establish that filter-bypassing technologies were illegal in Russia or that providing
information about them was contrary to any Russian law. Nor did it find any
extremist speech, calls for violence or unlawful activities, child pornography, or
any other prohibited content on the applicant’s webpage. The only basis for its
decision was the fact that filter-bypassing technologies might enable users to
access extremist content on some other website which was not connected or
affiliated with the applicant and the content of which he had no control over.
29. The Court notes that the utility of filter-bypassing technologies cannot be
reduced to a tool for malevolently seeking to obtain extremist content. Even though
the use of any information technology can be subverted to carry out activities
which are incompatible with the principles of a democratic society, filter-bypassing
technologies primarily serve a multitude of legitimate purposes, such as enabling
secure links to remote servers, channelling data through faster servers to reduce
page-loading time on slow connections, and providing a quick and free online
translation. None of these legitimate uses were considered by the Russian court
before issuing the blocking order.
30. The Court notes that all information technologies, from the printing press to
the Internet, have been developed to store, retrieve and process information. As the
third-party interveners and the UN Human Rights Committee pointed out,
information technologies are content-neutral (see paragraphs 15 and 22 above).
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