European Court Of Human Rights Reinforces Right To Access Online Content
from the blanket-bans-are-out dept
Back in 2010, Techdirt reported on Turkey's habit of blocking Google over certain holdings on its various sites. Mostly these were YouTube videos it took exception to, but other services were banned too. An earlier case, from 2009, received less attention at the time, but has now led to a precedent-setting ruling from the European Court of Human Rights (ECHR) that could have a big impact on future cases in Europe, and maybe even beyond.
The case was brought by a Turkish PhD student named Ahmet Yildirim, who complained that he had faced "collateral censorship" when his Web pages hosted on Google Site were shut down by the authorities in 2009 as a result of a court action aimed at another set of pages held there. Open Society Foundations, which had filed a brief with the European Court of Human Rights in support of the applicant's claim, explains the background:
Yildirim's academically-focused site was blocked by the Turkish regulator, TiM, as a result of a court injunction that ordered it to close down local access to the entire Google Sites domain. The move was supposedly aimed at a single website hosted by Google which included content deemed offensive to the memory of Mustafa Kemal Ataturk, the founder of the Turkish Republic, in breach of Turkish law.
As this makes clear, the problem was the over-blocking that resulted in all Google Sites being taken down, even though only one of them was accused of insulting modern Turkey's founder. The court's judgment (pdf) explains that such blocks are only compatible with the European Convention on Human Rights if they fulfil various strict conditions:
Yildirim's appeals against the injunction were turned down by the Turkish courts, which argued that the blanket ban was reasonable because it was not possible for the authorities to block a single Google-hosted site.
In its judgment, the ECHR noted that the regulator had not attempted to contact Google to seek the closure of the offending site, and that the 2007 law that allowed the regulator to close down foreign-hosted sites did not permit blocking an entire domain such as Google Sites.The Court reiterated that a restriction on access to a source of information was only compatible with the Convention if a strict legal framework was in place regulating the scope of a ban and affording the guarantee of judicial review to prevent possible abuses. However, when the Denizli Criminal Court had decided to block all access to Google Sites, it had simply referred to an opinion from the TiB without ascertaining whether a less far-reaching measure could have been taken to block access specifically to the site in question. The Court further observed that there was no indication that the Criminal Court had made any attempt to weigh up the various interests at stake, in particular by assessing whether it had been necessary to block all access to Google Sites. In the Court's view, this shortcoming was a consequence of the domestic law, which did not lay down any obligation for the courts to examine whether the wholesale blocking of Google Sites was justified. The courts should have had regard to the fact that such a measure would render large amounts of information inaccessible, thus directly affecting the rights of Internet users and having a significant collateral effect.
The broader importance of this decision is explained in a comment quoted by the Open Society Foundations press release:
Darian Pavli, a lawyer at the Justice Initiative who worked on the submission, said: "This is the first ruling by an international tribunal on wholesale blocking of internet content, and a very significant precedent. The court made clear that access to online content is a fundamental right, and that it can only be restricted in exceptional cases, subject to full judicial review."
Although there is a three-month period in which the ruling can be appealed, the fact that the court's verdict was unanimous among the seven judges, one of whom is from Turkey, suggests that any such appeal is unlikely to stand much chance of overturning this important decision.
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Filed Under: blocks, censorship, court of human rights, echr, europe, human rights, internet access, turkey
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TPB was shut down with a court order which i believe was done according to the rules, but maybe not if they did not give anyone the chance to defend thepiratebay in court.
Could be interesting but i suspect only for countries that like to just block sites to stop people complaining about them.
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Less than meets the eye
The ruling did not outright reject the legitimacy of the silly insult law, which is the ppredicate for censorship, and the ruling did not outright hold that restricting the access to information was not legitimate.
All that the ruling stated was that the government failed to employ a less restrictive means. Next the government will pass a newer more narrow law targeting only the URLs or it will argue that blocking the entire IP is the only effective means.
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The ECHR has no problem with a domestic state blocking access to things it considers unlawful. It has a problem with it being done under a blanket ban.
If Turkey wants to ban all sites that discuss Cyprus, for example, it could do so if there was a system for identifying the type of site, and not knocking out the rest of the internet.
An example would be treatment of wikipedia. If it was only the Cyprus and pages directly related to Cyprus that were blocked, the ECHR would probably allow a restriction (at least, the decision would be far from unanimous).
If, on the other hand, the Turkish authority banned the entirety of wikipedia, the lack of proportionality would sting the act as in contravention to the ECHR.
In the actual case there was a triple-blow in that the blocks were wide in scope, unregulated (i.e. in terms of a framework) and done without any thought about either.
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