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09.09.2016

Challenges to the ECtHR from Russia and Turkey: Freedom of Expression on the Internet

by Oleg Soldatov
The regulation of the online domain is gradually being tightened: an analysis of the most recent challenges to the ECtHR in Turkey and Russia 

The invention of the Internet offered an opportunity to access an unprecedented corpus of information, alongside with the benefits of electronic communication, to millions of users. The so-called Web 2.0 then marked a shift towards mass participation in content creation and social networking, fostering novel means of knowledge exchange (Kilburn and Earley, 2015). On-line communication in a broad sense can be characterised by the following three traits:

  1. a rich variety of content is made immediately available to everyone who can afford the relatively minimal cost of access,
  2. individuals can communicate their views, ideas and thoughts to others,
  3. individuals have equal opportunities for communication (Spano, 2016).

The ability to comment on web-based content and to impart information on the Internet constitutes a novel and democratic medium (Weber, 2014). It can be further argued that the online domain becomes one of the important means of coordinating civil society action in times of political unrest (Wolfsfeld, Segev and Sheafer, 2013). Naturally, in 47 Council of Europe Member States freedom of expression online falls within the ambit of Article 10 of the European Convention on Human Rights, which protects freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

At the same time, the State authorities do not take on the role of passive observers: the regulation of the online domain is gradually being tightened; the legislation is enacted in respect of filtering, blocking and takedown of content on the Internet. The grounds for blocking online content are numerous and include:

  1. the protection of national security, territorial integrity or public safety (e.g., terrorism),
  2. the prevention of disorder or crime (e.g.,child pornography),
  3. the protection of health or morals,
  4. the protection of the reputation or rights of others (e.g., defamation, invasion of privacy, intellectual property rights),
  5. preventing the disclosure of information received in confidence (Council of Europe, 2016).

In Brussels and Strasbourg the eyes are now directed towards the situation in Turkey and Russia, the two countries which have already provided ample opportunities for the European Court of Human Rights (ECtHR) to adjudicate on the freedom of expression on the Internet issues. Both countries have been in turmoil over the last two decades. Turkey is constantly facing challenges with its religious minorities (European Parliament, 2008) and currently finds itself in an aftermath of an unsuccessful coup d’État that took place in July 2016. The Russian Federation has always had a peculiar political and business regime, stemming from its post-Soviet legacy (Ledeneva, 2006) and resulting in difficulties with the functioning of civil society institutions (Henderson, 2011). The country is also impacted by volatile oil and gas prices (Henderson and Mitrova, 2015) and, more recently, by economic sanctions imposed by the EU and US following the annexation of Crimea and further activities in Eastern Ukraine (Oxenstierna and Olsson, 2015). These circumstances may be seen as being conducive to the State authorities in both Turkey and Russia to constantly “test the limits” of what is possible in online regulation to make sure that the criticism of the regime does not become too vocal online.

In general, the ECtHR’s case law testifies to the fact that it has become more articulate and emphatic in its application of Article 10 of the European Convention to online domain (European Court of Human Rights, 2016). A number of recent cases before the ECtHR document the attempts of Turkish authorities to limit access to the Internet. For example, the ECtHR’s primary case-law on “blanket-blocking” of social media and other websites, including such giants as YouTube and Google Sites service, is based on a number of applications lodged by Turkish nationals. In this regard, cases such as Ahmet Yildirim v. Turkey (2012), Akdeniz v. Turkey (dec) (2014) and Cengiz and Others v. Turkey (2015) are worth mentioning. Similarly, a case lodged in 2014 against Russia by one of the opposition leaders, Alexey Navalnyy, deals with the restriction to use the Internet and has been communicated to the Russian government for observations; the judgment is pending.

Furthermore, both Turkey and Russia have put in place the legislation which allows removal and/or blocking of web sites without prior court decisions (see, in case of Russia, Federal Law on Information, Information Technologies and Protection of Information with further amendments and, in case of Turkey, Law on Regulating Broadcasting in the Internet and Fighting Against Crimes Committed through Internet Broadcasting). In both countries administrative bodies, such as the Presidency of Telecommunication (“TIB”) in Turkey and the Federal Service for Supervision in the Sphere of Telecom, Information Technologies and Mass Communications (“Roskomnadzor”) in Russia, have an authority to implement blocking measures.

The recent developments in both countries leave no room for doubt that the ECtHR will face an influx of applications that allege Article 10 violations stemming from the regulatory activities and administrative practices. In particular, reports from Turkey indicate incidents of website blocks and detentions of online news editors (Committee to Protect Journalists, 2016; Global Voices, 2016) after the attempted coup. At the same time, a number of recent court decisions from Russia outline a trend of imposing harsh fines and prison sentences on Internet users for (re-)posting on-line content on their social media accounts:

  • prison sentence for reposting a picture mocking the Orthodox church (Moskovskoye Byuro Po Pravam Cheloveka, 2016);
  • €2 700 fine for reposting an article concerning the alleged involvement of the USSR in triggering the Second World War (Deutsche Welle, 2016);
  • prison sentence for reposting an article titled “Crimea is Ukraine” (BBC, 2016).

What is more, a very recent Russian Federal Law No. 374 of 6 July colloquially known as the “Yarovaya law” makes it a crime to not warn the authorities of “reliable” information about planned terrorist attacks, armed uprisings and other crimes. Expressing approval of terrorism on the Internet will now be punishable with up to 7 years in prison, while encouraging people to take part in “mass disturbances” may result in a 5- to 10-year prison sentence.

To conclude, it is plausible to assume that the ECtHR would have a lot on its plate in the near future while assessing the situation with freedom of expression on the Internet as well as related legislative and administrative practices in Turkey and Russia.

Oleg Soldatov is an independent researcher. He worked as a lawyer at the European Court of Human Rights from 2011 until 2014 and as a legal advisor at the Council of Europe from 2015 until August 2016

References

Ahmet Yildirim v. Turkey, No. 3111/10, European Court of Human Rights, 18 December 2012.

Akdeniz v. Turkey (dec), No. 20877/10, European Court of Human Rights, 11 March 2014.

BBC (2016). Nashel, Repostnul - V Tjur'mu: Kak v Rossii Sudjat za Ekstremizm. [Online]. Available at: http://www.bbc.com/russian/russia/2016/02/160225_smj_regional_extremism_courts [Accessed 4 August 2016].

Cengiz and Others v. Turkey, Nos 48226/10 and 14027/11, European Court of Human Rights, 1 December 2015.

Committee to Protect Journalists (2016). Turkey Crackdown Chronicle: Week of July 24. [Online]
Available at: https://cpj.org/blog/2016/07/turkey-crackdown-chronicle-week-of-july-24.php
[Accessed 3 August 2016].

Council of Europe (2016). Filtering, blocking and take-down of illegal content on the Internet. [Online] Available at: https://www.coe.int/en/web/freedom-expression/study-filtering-blocking-and-take-down-of-illegal-content-on-the-internet [Accessed 4 August 2016].

Deutsche Welle (2016). Zhitel' Permi Osuzhden Za Repost Materiala "O Napadenii SSSR Na Pol'shu". [Online] Available at: http://dw.com/p/1JHW8
[Accessed 5 August 2016]

European Court of Human Rights (2016). Factsheet - New Technologies. [Online]
Available at: http://www.echr.coe.int/Documents/FS_New_technologies_ENG.pdf
[Accessed 3 August 2016].

European Parliament (2008). Religious Freedom in Turkey: Situation of Religious Minorities. Brussels: European Parliament.

Federal Law No. 149 “On Information, Information Technilogies and Protection of Information” as amended (in Russian). [Online]
Available at: http://www.consultant.ru/document/cons_doc_LAW_61798/
[Accessed 4 August 2016].

Federal Law No. 374 “On Amending the Federal Law on Counterterrorism and Select Legislative Acts of the Russian Federation Concerning the Creation of Additional Measures Aimed at Countering Terrorism and Protecting Public Safety (in Russian). [Online]
Available at: http://www.consultant.ru/document/cons_doc_LAW_201078/ [Accessed 5 August 2016].

Global Voices (2016). Netizen Report: What do Zimbabwe, Kashmir, and Turkey Have in Common? Internet Censorship. [Online]
Available at: https://globalvoices.org/2016/07/21/netizen-report-what-do-zimbabwe-kashmir-and-turkey-have-in-common-internet-censorship/
[Accessed 4 August 2016].

Henderson, J. & Mitrova, T. (2015). The Political and Commercial Dynamics of Russia’s Gas Export Strategy, Oxford: Oxford Institute for Energy Studies.

Henderson, S. (2011). Civil Society in Russia: State Society Relations in the Post-Yeltsin Era, Washington: National Council for Eurasian and East European Research.

Kilburn, D. and Earley, J. (2015). Disqus website-based commenting as an e-research method: engaging doctoral and early-career academic learners in educational research. International Journal of Research & Method in Education, 38(3), pp.288-303.

Law No. 5651 on Regulating Broadcasting in the Internet and Fighting Against Crimes Committed through Internet Broadcasting, as amended (in Turkish). Available at: http://www.mevzuat.gov.tr/MevzuatMetin/1.5.5651.pdf [Accessed 4 August 2016].

Ledeneva, A. (2006). How Russia Really Works: The Informal Practices That Shaped Post-Soviet Politics and Business. Ithaca, NY: Cornell University Press.

Moskovskoye Buro Po Pravam Cheloveka (2016). O prigovore Maksimu Kormelitskomu. [Online]
Available at: http://pravorf.org/index.php/news/2122-o-prigovore-maksimu-kormelitskomu [Accessed 5 August 2016].

Navalnyy v. Russia (communicated case), No. 42734/14, European Court of Human Rights, 3 July 2014 and 7 January 2015.

Oxenstierna and Olsson (2015). The Economic Sanctions Against Russia: Impact and Prospects of Success. Stockholm: Ministry of Defence.

Spano, R. (2016). The Internet and the ECHR - A Paradigm Shift? [video] Available at: http://tv.coe.int/ECHR/video.php?v=ECHR_20160118_Spano [Accessed 4 August 2016].

Weber, P. (2014). Discussions in the comments section: Factors influencing participation and interactivity in online newspapers' reader comments. New Media & Society, 16(6), pp.941-957.

Wolfsfeld, G., Segev, E. and Sheafer, T. (2013). Social Media and the Arab Spring: Politics Comes First. The International Journal of Press/Politics, 18(2), pp.115-137.



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