Freedom of expression online is under attack on many fronts. One way that governments are increasingly undermining free expression is by blocking a wide range of websites in an attempt to restrict access to the illegal content on some of them. We call this “collateral” blocking, because the vaguely written orders and broad enforcement actions mostly impact websites that do not contain any unlawful content.
A country with a striking track record of blocking internet content is Russia, and that practice is now under the scrutiny of the European Court of Human Rights (ECHR) in a case called Kharitonov v. Russia.
The parties of the case are the Russian government and Vladimir Vladimirovich Kharitonov, who is executive director of the Association of Electronic Publishers and co-founder of the Association of Internet Users. Access Now submitted a third-party intervention alongside interventions by other organizations, including Article 19. We used our submission to highlight how collateral website blocking interferes with the core essence of the right to freedom of expression.
More specifically, we assert that any website blocking, throttling, or other disruption, whether collateral or targeted, must strictly comply with human rights law, on a case-by-case basis, and take place under judicial oversight involving competent technical scrutiny as well. Technical experts should inform the court about the potential impact of the blocking, and methods to mitigate and sufficiently target the order to ensure its implementation does not interfere with access to information and other human rights.
Background for the case
On the final days of December in 2012, several users from various regions in Russia reported to the administrators of the www.digital-books.ru website that internet providers had blocked the site and they could not reach it due to “a decision by the competent Russian authority” . Mr. Kharitonov discovered that the IP address for his website had been “blacklisted” by the Federal Drug Control Service.
The website had existed since 19 May 2008 and was hosted by Dreamhost, a US-based provider of shared web hosting services. Note that this provider was hosting multiple websites, which were residing on a single machine with a single IP address, but with different domain names. Precisely because of this mutual single IP address, the website (www.digital-books.ru) was connected to another one: The Rastafari Tales (www.rastaman.tales.ru), that was featuring a collection of fictional stories about the use of cannabis, the use of which is prohibited in Russia.
So, the decision by Federal Drug Control was intended to block access to the The Rastafari Tales (www.rastaman.tales.ru), and not to the digital-books.ru but because they were each hosted by Dreamhost, and shared the same IP address, Kharitonov’s website became victim to collateral website blocking.
Subsequently, Kharitonov went through the legal process in Russia to challenge the decision to block the IP address, which blocked access to his website even though it did not contain any illegal information.
After exhausting all domestic remedies before national courts in Russia without any success, Kharitonov then turned to the European Court of Human Rights in Strasbourg.
Access Now’s submission to the court
NGOs and think tanks working to defend digital rights recognized the significance of the case and moved to provide the ECHR with expert opinions on the impact of large-scale website blocking on the freedom of expression. In September 2017 the court decided to “grant leave” (meaning allowed) Access Now to submit a third-party intervention in the case.
This case is key for determining “the limits of permitted state interference in the online environment”. Access to the free and open internet not only enables full enjoyment of the freedom of information but is also a precondition for exercising the freedom of expression. Disproportionate and/or unnecessary restrictions on these rights also undermine other values guaranteed by the European Convention on Human Rights, and consequently the functioning of democratic societies.
The impact of website blocking and consequent collateral website blocking can only be considered and assessed within the larger context of freedom of expression online and its existing limits. These limits range from content regulations related to hate speech, copyright, and countering terrorism and violent extremism.
Access Now’s submission covers (1) how the problem of potentially harmful content can be solved in a right-respecting fashion in democratic states; (2) what the minimum safeguards are for online content restrictions in order to be considered proportionate and necessary in a democratic society; and (3) what technical measures are available to avoid or to minimise collateral website blocking and mitigate its adverse interference with human rights.
Internet freedom is broken in Russia
Sadly, this is not the first nor will it be the last time that Russia blocks a website that does not contain illegal content. According to data provided by Roskomsvoboda — a Russian community project supporting freedom of information online — as of 28 June 2017, a staggering 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.
According to the Human Rights Watch report “Russia’s Assault on Freedom of Expression” (July 2017) and the Freedom of the Net country profile by Freedom House (2016), between 2012 and 2017 Russia adopted several laws that have increasingly stifled freedom of expression online, while also reducing and limiting the right to privacy.
- In the name of protecting children, Russia created a registry for blocked (or blacklisted) content
- In an attack on the LGBTQI community, Russia enacted a “gay propaganda” ban, censoring information provided via press, television, radio, and the internet, and making illegal any material portraying LGBTQI relationships as normal or healthy.
- As a reaction and retaliation against the anti-Putin performance of Pussy Riot, Russia adopted a law in 2013 that makes it a crime to offend the “religious feelings of believers”. It bars any “public action expressing clear disrespect for society and committed in order to insult the religious feelings of believers”.
- To target critics, Russia enacted the “Lugovoi Law” that empowers the authorities to block—within 24 hours and without a court order—online sources that disseminate calls for mass protests, extremist activities, or participation in unsanctioned mass public events.
- Under the broader framework of a “counterterrorism” narrative, Russia adopted several laws:
- Bloggers who have more than 3,000 unique visits per day are required to register with the government authority responsible for overseeing online and media content (Roskomnadzor)
- Telecommunications and online services are required to retain both the content and metadata of all communications including calls, emails, text messages, and more. The service providers are obliged to disclose any requested information to authorities without a court order.
- Companies are required to undermine the security of online services by providing authorities with the “information necessary for decoding” electronic messages. Different interpretations of the law imply that it could authorise forcing companies to hand over encryption keys, banning services that use encryption, or mandating the weakening of the security of tools and devices.
- Russia has banned virtual private networks (VPNs) and prohibited anonymity for users of online messaging applications.
- Russia has gained control of mainstream media, including print outlets, television, radio and increasingly websites through direct ownership, propaganda tools and misinformation, and intimidation and physical threats.
- Russia has increased pressure over digital activism and social media through content regulation and website blocking measures on the one hand, and increasing number of arrests of social media users for “extremist expression”.
- Russia is closing civic space through discrediting and marginalising NGOs, adopting the foreign agent law (now targeted at media as well), banning “undesirable” local and international organisations, and undermining strategic litigation before the European Court of Human Rights, intimidation through prosecution.
As a result of these legal and practical measures, Russia is ranked 148th out of 180 countries in the Reporters Without Borders 2017 World Press Freedom Index, and in 2017, its Freedom on the Net score continued to decline. The internet in Russia, which until 2011 was considered to be relatively free, is now considered to be among the most restrictive around the world. Severe restrictions of freedom of expression and the right to privacy may appear to target political opposition and civil society, but in fact they violate the human rights of all Russians.
In this larger context, website blocking is a key tool for online censorship and it interferes with the essence of the right to freedom of expression. Human rights must be promoted and protected on the internet just as they have traditionally been implemented in the physical world.