European Court of Human Rights rules that collateral website blocking violates freedom of expression
In a decision in the case of Vladimir Kharitonov v. Russia rendered in June this year, the European Court of Human Rights (ECtHR) has held that an incidental blocking of the applicant’s website as a result of a State agency’s decision to block access to another website which had the same IP address as the applicant’s website violated freedom of expression.
The article exposes the different stages of the Court’s analysis that allowed it to reach this conclusion and assesses the practical significance of the case for copyright enforcement online. With regards to the latter, specifically, the ECtHR had already held in March this year (in the case of Pendov v. Bulgaria) that the limited functionality for a significant period of time of the applicant’s cultural website that had resulted from criminal copyright enforcement proceedings against third parties violated the applicant’s freedom of expression.
The Court of Justice of the European Union had likewise confirmed previously, in a much discussed judgment in UPC Telekabel, the need to assess the effects of the measures blocking copyright-infringing websites upon the fundamental rights of those affected, including the Internet users’ freedom of expression and information.
This is not to say, though, that the ECtHR is necessarily to provide for substantially more extensive guidelines in the area of website blocking for copyright enforcement beyond those already elaborated in Luxemburg and Strasbourg. It worth noting that Kharitonov concerned one specific, particularly intrusive type of website blocking – IP address blocking – that the courts in a number of European jurisdictions had already ruled disproportionate. With regards to other, less aggressive forms of blocking, the ECtHR might feel less at ease to intervene.
Overall, however, the general possibility to test website blocking practices from the human rights perspective can only be approved of, and the recent Kharitonov judgment certainly adds weight to this possibility.
[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). The full text of this contribution will be made available on Advance Access soon]