Google v Russia: a hint of things to come

The outcome of Google’s complaint to the European Court of Human Rights in Google v Russia cannot be considered a surprise. The facts were so resoundingly against Russia that anything but a finding in Google’s favour would have had everyone reaching for the smelling salts.

Russia, following its resignation from the Council of Europe, chose not to participate in the case. We therefore have to be cautious about placing too much reliance on the Court’s reasoning. Nevertheless, the case is of interest not just for the main judgment, but for the concurring Opinion of Acting President Judge Pavli, who offered his reflections on how he would like the Court’s major online platform jurisprudence to develop in the future.

He speculates, for instance, that the Strasbourg court might at some point in the future – under the banner of securing freedom of expression – decide to require Member states, as a positive obligation under the Convention, to impose ‘right to a forum’ obligations on large platforms.

ECHR Article 10 and positive state obligations

For most Convention rights, positive state obligations (unlike protections against State action) do not exist automatically – the Court has to take the step of deciding that a positive obligation exists in specific circumstances. The position is summarised in Palomo Sanchez:

“58. …in addition to the primarily negative undertaking of a State to abstain from interference in the rights guaranteed by the Convention, “there may be positive obligations inherent” in those rights.

59.  This is also the case for freedom of expression, of which the genuine and effective exercise does not depend merely on the State’s duty not to interfere, but may require positive measures of protection, even in the sphere of relations between individuals. In certain cases, the State has a positive obligation to protect the right to freedom of expression, even against interference by private persons…”

Although the Strasbourg Court frequently invokes positive obligations, Article 10 remains an area in which it has so far been relatively cautious in finding that positive obligations exist –especially where horizontal relations between private persons are concerned.

The reason for that is fairly obvious: freedom of expression is a highly sensitive area; and the effect of deploying a positive obligation (especially horizontally) is that Member states, rather than being free to make their own policy choices within boundaries set by the Court, must implement a particular policy devised by the Court (subject only to the latitude afforded to Member states by the ‘margin of appreciation’).

Some might think that a right to a forum is a good idea. Others might disagree. However, the prior question – on which opinions will also vary – is whether each Member state legislature gets to decide that policy question for itself, quite possibly coming to a variety of different answers, or whether the Strasbourg court gets to determine a uniform policy under the banner of securing Convention rights. 

Google v Russia – the facts

Turning to the Google v Russia case itself, two sets of facts came before the Strasbourg court: first, penalties imposed on Google for not complying with orders issued by the Russian telecoms regulator RKN to remove YouTube user content critical of the government and supporting the political opposition.

Second, a more complex history of Google barring a Russian state YouTube channel (Tsargrad) following the imposition of US and EU sanctions, then, after a Russian court order, reinstating it minus monetisation.  A Russian bailiff decided that the reinstatement did not comply with the order and imposed penalties greatly exceeding Tsargrad’s lost revenue. The local courts declined to interfere. Another 20 plaintiffs, predominantly Russian state channels, brought copycat claims in the Russian courts, with the result that by September 2022 the accumulated financial penalties were in the region of $16 trillion. Google Russia filed for bankruptcy in June 2022.

Applicability of Article 10

The Court held, following its Autronic decision, that Article 10 applies to everyone including legal entities and commercial profit-making companies. It observed that service providers perform an important role in facilitating access to information and debate on a wide range of political, social and cultural topics.

The Court had previously acknowledged in Tamiz that both Google and its end users enjoyed Article 10 rights. In Cengiz it had acknowledged that YouTube constituted a unique platform for freedom of expression.

Lastly, citing Özgür Radyo, it reiterated that any measure compelling a platform to restrict access to content under threat of penalty constitutes interference with freedom of expression.

RKN’s removal orders

The ECtHR majority decided that even assuming that the interference was genuinely in pursuit of a legitimate aim (as to which it was not satisfied), the government’s actions were not necessary in a democratic society. They observed that penalising Google LLC for hosting content critical of government policies or alternative views on military actions, without demonstrating a pressing social need for its removal, struck at the very heart of the internet’s function as a means for the free exchange of ideas and information. [80]

Specifically, the majority held:

-         The content that the authorities sought to suppress was political in nature [82]

-         The sanctions were disproportionate. By their nature and scale they were liable to have chilling effect on Google’s willingness to host content critical of authorities. The approach of the Russian authorities effectively required Google to act as censors of political speech on behalf of state authorities. [81]

-         The Russian domestic courts displayed a perfunctory approach to necessity and failed to examine the matter in the light of the Convention requirements. [82] ]

Existence of an interference Judge Pavli commented on the majority’s approach to the existence of an interference with the platform’s Article 10 rights:

“The Court considers that the imposition of such severe penalties, combined with the threat of further sanctions for non-compliance with [RKN takedown requests], exerted considerable pressure on Google LLC to censor content on YouTube, thereby interfering with its role as a provider of a platform for the free exchange of ideas and information.” [5]

He suggested [5] that this was a “novel interpretation”, lacking further elaboration of nature of the interference or the role of the applicant companies as holders of Art 10 rights.

He described the Tamiz decision as an Article 8 case that involved Google Inc. only indirectly and that centred primarily on the margin of appreciation afforded to the British courts. He suggested that that single sentence “did not provide a great deal of clarity as to how the Court views the role of such platforms under Article 10”.

That may have some force as a general observation. However, the majority found that there was interference with the means of dissemination. That does not seem especially novel or to require much, if any, elaboration. In Strasbourg caselaw, means of dissemination is a long-established mode of interference with freedom of expression:

“… any restriction imposed on [means of dissemination] necessarily interferes with the right to receive and impart information” (Yildirim (2012), citing Autronic (1990); Cengiz (2015)). 

It is not obvious how any further elaboration of the nature of the interference or the roles of the Google companies would have assisted in reaching the conclusion that an interference with the means of dissemination existed.

There could be a question as to who has standing to complain of an interference with means of dissemination: an affected user, the provider of the means of dissemination, or both.

In Yildirim an internet user with a website on Google Sites complained that the whole of Google Sites, including his site, had been blocked by the telecommunications authority following an order of a Turkish court. His site was not the subject of the original court order. Similarly, in Cengiz the complainants were three legal academics affected by a Turkish court order to block YouTube. In Autronic, a commercial company was denied a broadcast licence to show a Russian satellite TV channel at a trade fair.

Yildirim, the Cengiz complainants and Autronic were each held to have standing to complain to Strasbourg. The Court in Autronic pointed out that Article 10 itself “expressly mentions in the last sentence of its first paragraph (art. 10-1) certain enterprises essentially concerned with the means of transmission.”

Rights and responsibilities While Judge Pavli agreed that present case fell manifestly into the category of censorship, he embarked on a disquisition - under the title “Rights and Responsibilities of Major Online Platform Operators” - about possible duties and responsibilities of major platforms. He observed how they were no longer “mere” intermediaries, and increasingly used human and algorithmic tools for curating, moderating and monetising third-party content. He took as his cue a comment in the majority judgment:

“…At the same time, the Court notes that when internet intermediaries manage content available on their platforms or play a curatorial or editorial role, including through the use of algorithms, their important function in facilitating and shaping public debate engenders duties of care and due diligence, which may also increase in proportion to the reach of the relevant expressive activity…” [79]

However, neither the majority comment nor Judge Pavli’s additional observations have any obvious relevance to whether an interference existed in this case. Indeed, Judge Pavli acknowledged that the question raised by the RKN removal orders did not concern what obligations online hosting platforms might have, but what rights they enjoyed under Article 10 of the Convention.

It is perhaps unsurprising that the majority fastened on to the simplest, most obvious basis for its decision: disproportionate sanctions and domestic court failures.

Article 10(2) duties and responsibilities In any event, within Article 10 any ‘duties and responsibilities’ come into play, if at all, only as a factor at the second, 10(2), stage: necessity and proportionality of the state’s interference with someone’s Article 10 rights. As pointed out in the dissenting judgment of Judges Sajó and Tsotsoria in Delfi, Article 10(2) does not provide any basis for requiring the imposition of independent, standalone duties:

“The protection of freedom of expression cannot be turned into an exercise in imposing duties. The “duties and responsibilities” clause of Article 10 § 2 is not a stand-alone provision: it is inserted there to explain why the exercise of the freedom in question may be subject to restrictions, which must be necessary in a democratic society. It is only part of the balance that is required by Article 10 §2.” [38]

Thus any standalone platform duties could be imposed by Strasbourg only via the doctrine of Member state positive obligations.

Disinformation A clue to what may have lain behind Judge Pavli’s exegesis on duties and responsibilities lies in his opening comment: that Russia’s measures ostensibly concerned prevention of mass disinformation. [2] In a climate in which it is routinely said that platforms should have a duty to prevent dissemination of disinformation, an opportunity to explore that issue could be tempting. In another case it might be necessary to explore the ‘duties and responsibilities’ issues that can arise under Article 10(2), when considering the legitimate aim, necessity and proportionality of a state interference. This was not that case.

A positive State obligation? Even less would Google v Russia have been a suitable case in which to explore whether Strasbourg should require Member states to impose, via the doctrine of positive obligations, a self-standing duty on large platforms to take steps to prevent disinformation. It is not entirely clear if a positive obligation is what Judge Pavli was contemplating for the future. He starts:

“There is growing recognition that respect for fundamental rights online, and in particular freedom of expression and information, requires responsible practices by providers of major intermediary services”. [8] (emphasis added)

That might perhaps imply a positive obligation on a Member state to legislate. But he concludes:

“it may be considered permissible, in principle, for states to impose on major providers certain due-diligence obligations that seek to promote a safe online environment and to prevent turning their platforms into conduits for the large-scale dissemination of harmful content. In some context, such as elections, these safeguards may prove essential for the protection of democracy itself.” [8] (emphasis added)

If Judge Pavli’s point is only that a Member state’s imposition of due diligence obligations (if clearly and precisely defined, circumscribed and capable of being implemented proportionately – no small hurdle, it should be said) may in principle be compatible with the Convention, that is an unexceptional conclusion.

As to whether or not to impose such obligations, Member states are generally free to make their own policy choices within the constraints of the Convention. But if Judge Pavli is suggesting that (for instance) safeguards regarding elections might constitute a positive Convention obligation for Member states, that is a different matter.

EU Digital Services Act Judge Pavli also noted the EU Digital Services Act due-diligence obligations, although to what end is not clear. The mere existence of a domestic law (even an EU law that in Strasbourg caselaw benefits from a presumption of ECHR compatibility) should not be taken to imply a Convention ‘ought’.

Tsargrad

The second set of facts before the court raised the converse issue to the first: penalties imposed for not hosting user content. The penalties were for breach of a court order requiring reinstatement of a previously terminated YouTube channel.

Tsargrad sued in the Russian courts for wrongful termination of its contract with Google. Ultimately, the only issue before the courts was whether foreign sanctions invoked as grounds for termination complied with Russian public order. Following an unsuccessful appeal, Google restored the Tsargrad account but without monetisation. Penalties ensued.

Existence of an interference On these facts the preliminary question of whether there was an interference with Google’s Article 10 rights was more complex than for the RKN removal orders. The Court reasoned that:

-         Freedom of expression may encompass a right not to be compelled to express oneself. [90]

-         A holistic approach to freedom of expression encompasses both the right to express ideas and the right to remain silent [90]

-         The Russian court order constituted compulsion to host specific content, backed by financial penalties. That:

o   Directly impacted Google’s right to determine what content it was prepared to host on its platform

o   Fell within Article 10 – as with the RKN removal orders, the means of transmission is protected as well as content (Autronic)

Prescribed by law As to whether the interference was prescribed by law, Google argued that the quantum of the penalties far exceeded previous practice and any loss that might have been suffered. The Court had serious doubts on the point, but held that in any event the interference not justified.

Necessity and proportionality The Court was prepared to assume that the interference had the legitimate aim of protecting Tsargrad’s rights not to be subject to unlawful suspension due to sanctions contrary to public order. However, the interference was not necessary in a democratic society:

-         Where domestic law does not require proportionality in the context of excessive sanctions, or where the damages are manifestly disproportionate, there is a risk of creating a “chilling effect” on freedom of expression [96]

-         The Court noted inconsistencies raising doubts as to whether the measures pursued any genuine “pressing social need”.  Specifically, while purporting to defend freedom to receive information in Tsargrad’s case, the Russian authorities were simultaneously demanding that Google remove content critical of government policies. [97]

-         Penalties were manifestly disproportionate, reaching astronomical sums that bore no relationship to any harm suffered by Tsargrad. Copycat claims by State-owned media outlets increased the penalties to USD 16 trillion. Google’s Russian subsidiary had to be shut down. [98]

-         The domestic authorities were determined to continue recovery even after compliance with the obligation to restore access. The bailiff procedure, conducted within 24 hours without notice to Google, effectively expanded the scope of the order, raising concerns of bad faith. The process was incompatible with legal certainty. [99]

The grossly disproportionate penalties and bad faith enforcement demonstrated disproportionate interference and thus an Article 10 violation.

Penalties or substance? Judge Pavli disagreed with the majority’s approach to necessity and proportionality. In his view the majority was wrong to focus on proportionality of the sanctions: the main reason for failing the necessity test was the Russian courts’ failure to address the Article 10 rights of Google (or indeed of Tsargrad as a user) and to give relevant or sufficient reasons; the sanctions were secondary. [13]

However, he stressed that it was inconsistent with Art 10 for States to force private service providers to collaborate in policing and censoring speech that is clearly protected by the Convention.

Right to a forum Judge Pavli again embarked on a broader discussion, this time under the title “The Next Frontier – Right to a Forum and Procedural Safeguards for Users”.

His previous reference to Tsargrad’s Article 10 user rights foreshadows these comments, in which he speaks of user rights not only as something to be protected against state interference, but something enjoyed by users viz a viz platforms.

Thus, for Judge Pavli it was also of ‘some relevance’ that Russian law doesn’t grant users any due process as against the platform, in contrast to e.g. the EU Digital Services Act.

One might ask why that would be of any relevance to a case in which the Russian courts had upheld and enforced Tsargrad’s claim, not rejected it.  But at any rate, lack of platform due process mechanisms could come into play in a Strasbourg complaint brought by a user whose claim to have been wrongly excluded by a platform was rejected by the local courts.

The immediate problem with a complaint on those grounds is that the Convention does not confer any direct right on a private person to complain about action taken by another private person. The interference has to be attributed in some way to a member State. Such a complaint could only be formulated as breach of a positive obligation on a Member state to legislate for platform due process mechanisms, or in some other fashion to enact a ‘right to a forum’.  

Appleby The obstacle in the way of that approach is Appleby, a 2003 case concerning refusal of access to a privately owned shopping mall to set up a stall collecting signatures for a petition against a proposed building development. The Court expressly rejected a positive obligation on a state to secure such a right to a forum. It observed:

“The issue to be determined is whether the respondent State has failed in any positive obligation to protect the exercise of the applicants’ Article 10 rights from interference by others – in this case, the owner of the Galleries.”

…

“However, while freedom of expression is an important right, it is not unlimited. Nor is it the only Convention right at stake. Regard must also be had to the property rights of the owner of the shopping centre under Article 1 of Protocol No. 1.”

In Google v Russia Judge Pavli contemplated a future revisit of this long-standing Strasbourg caselaw:

“These issues are largely novel, and I believe in the long run will require the Court to revisit its “right of forum” doctrine as established in the 2003 case of Appleby and Others v. the United Kingdom (no. 44306/98, ECHR 2003-VI).”

He added:

“15. Our own Article 10 case-law on user rights remains rather limited at this juncture. Judging from the above trends, however, it is most likely only a matter of time before the Court is called upon to resolve disputes between the conflicting Article 10 and/or commercial interests of private online platforms, on the one hand, and their users, on the other – including the key question whether a right to a forum ought to exist in this context.

The question will undoubtedly be of great importance for the future of democratic discourse in our societies. Seen from this contemporary perspective, the Appleby principles will need to be revisited, as they are not fit, in my view, for the current online environment.

A small-town shopping mall from 1998 is a long way from the YouTube of 2025. To begin with, unlike the brick‑and‑mortar shopping malls of yesteryear, many of today’s large online platforms are squarely in the information business. More importantly, the debate on the availability of alternative fora of expression will also be much more complex.

16.  The Court will be called upon to assess whether major online platforms that are important for the free flow of information in our societies can be assimilated to the kind of public spaces to which everyone must have unhindered access. Whatever the answer to that question – and whatever rights Article 10 itself may (or may not) confer on users in that regard – it seems reasonable to assume that States will have a sufficiently strong interest in requiring large platforms to provide at least certain basic due-process safeguards aimed at protecting users – the powerful, the famous or just ordinary citizens – from arbitrary exclusion from the marketplace of ideas.”

Many might welcome the prospect of reopening Appleby and inviting the Court to devise rules for large platforms as public spaces.  Enticing new vistas of Big Tech policy advocacy would open up, refracted through the panoramic lens of human rights and conducted under the benevolent gaze of the Strasbourg Court. Whether extending the Court’s Article 10 role further from boundary-setter to meta-legislator would be universally welcomed is another matter.

[4 September 2025 Amended final sentence.]