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.]

Speech is not a tripping hazard - response to the Online Harms White Paper

My submission to the Online Harms White Paper Consultation.




Errata as noted in document corrected 29 June 2019.
Reference to Al-Najar and Others v Cumberland Hotel (London) Ltd
[2019] EWHC 1593 (QB) added 1 July 2019.

A Lord Chamberlain for the internet? Thanks, but no thanks.

This summer marked the fiftieth anniversary of the Theatres Act 1968, the legislation that freed the theatres from the censorious hand of the Lord Chamberlain of Her Majesty’s Household. Thereafter theatres needed to concern themselves only with the general laws governing speech. In addition they were granted a public good defence to obscenity and immunity from common law offences against public morality.

The Theatres Act is celebrated as a landmark of enlightenment. Yet today we are on the verge of creating a Lord Chamberlain of the Internet. We won't call it that, of course. The Times, in its leader of 5 July 2018, came up with the faintly Orwellian "Ofnet". Speculation has recently renewed that the UK government is laying plans to create a social media regulator to tackle online harm. What form that might take, should it happen, we do not know. We will find out when the government produces a promised white paper.

When governments talk about regulating online platforms to prevent harm it takes no great leap to realise that we, the users, are the harm that they have in mind.

The statute book is full of legislation that restrains speech. Most, if not all, of this legislation applies online as well as offline. Some of it applies more strictly online than offline. These laws set boundaries: defamation, obscenity, intellectual property rights, terrorist content, revenge porn, harassment, incitement to racial and religious hatred and many others. Those boundaries represent a balance between freedom of speech and harm to others. It is for each of us to stay inside the boundaries, wherever they may be set. Within those boundaries we are free to say what we like, whatever someone in authority may think. Independent courts, applying principles, processes and presumptions designed to protect freedom of speech, adjudge alleged infractions according to clear, certain laws enacted by Parliament.

But much of the current discussion centres on something quite different: regulation by regulator. This model concentrates discretionary power in a state agency. In the UK the model is to a large extent the legacy of the 1980s Thatcher government, which started the OF trend by creating OFTEL (as it then was) to regulate the newly liberalised telecommunications market. A powerful regulator, operating flexibly within broadly stated policy goals, can be rule-maker, judge and enforcer all rolled into one.

That may be a long-established model for economic regulation of telecommunications competition, energy markets and the like. But when regulation by regulator trespasses into the territory of speech it takes on a different cast. Discretion, flexibility and nimbleness are vices, not virtues, where rules governing speech are concerned. The rule of law demands that a law governing speech be general in the sense that it applies to all, but precise about what it prohibits. Regulation by regulator is the converse: targeted at a specific group, but laying down only broadly stated goals that the regulator should seek to achieve.
As OFCOM puts it in its recent discussion paper ‘Addressing Harmful Online Content’: “What has worked in a broadcasting context is having a set of objectives laid down by Parliament in statute, underpinned by detailed regulatory guidance designed to evolve over time. Changes to the regulatory requirements are informed by public consultation.”

Where exactly the limits on freedom of speech should lie is a matter of intense, perpetual, debate. It is for Parliament to decide, after due consideration, whether to move the boundaries. It is anathema to both freedom of speech and the rule of law for Parliament to delegate to a regulator the power to set limits on individual speech.

It becomes worse when a document like the government’s Internet Safety Strategy Green Paper takes aim at subjective notions of social harm and unacceptability rather than strict legality and illegality according to the law. ‘Safety’ readily becomes an all-purpose banner under which to proceed against nebulous categories of speech which the government dislikes but cannot adequately define.

Also troubling is the frequently erected straw man that the internet is unregulated. This blurs the vital distinction between the general law and regulation by regulator. Participants in the debate are prone to debate regulation as if the general law did not exist.

Occasionally the difference is acknowledged, but not necessarily as a virtue. The OFCOM discussion paper observes that by contrast with broadcast services subject to long established regulation, some newer online services are ‘subject to little or no regulation beyond the general law’, as if the general law were a mere jumping-off point for further regulation rather than the democratically established standard for individual speech.

OFCOM goes on that this state of affairs was “not by design, but the outcome of an evolving system”. However, a deliberate decision was taken with the Communications Act 2003 to exclude OFCOM’s jurisdiction over internet content in favour of the general law alone.

Moving away from individual speech, the OFCOM paper characterises the fact that online newspapers are not subject to the impartiality requirements that apply to broadcasters as an inconsistency. Different, yes. Inconsistent, no.

Periodically since the 1990s the idea has surfaced that as a result of communications convergence broadcast regulation should, for consistency, apply to the internet. With the advent of video over broadband aspects of the internet started to bear a superficial resemblance to television. The pictures were moving, send for the TV regulator.

EU legislators have been especially prone to this non-sequitur. They are currently enacting a revision of the Audiovisual Media Services Directive that will require a regulator to exercise some supervisory powers over video sharing platforms.

However broadcast regulation, not the rule of general law, is the exception to the norm. It is one thing for a body like OFCOM to act as broadcast regulator, reflecting television’s historic roots in spectrum scarcity and Reithian paternalism. Even that regime is looking more and more anachronistic as TV becomes less and less TV-like. It is quite another to set up a regulator with power to affect individual speech. And it is no improvement if the task of the regulator is framed as setting rules about the platforms’ rules. The result is the same: discretionary control exercised by a state entity (however independent of the government it may be) over users’ speech, via rules that Parliament has not specifically legislated.

It is true, as the OFCOM discussion paper notes, that the line between broadcast and non-broadcast regulation means that the same content can be subject to different rules depending on how it is accessed. If that is thought to be anomalous, it is a small price to pay for keeping regulation by regulator out of areas in which it should not tread.

The House of Commons Media Culture and Sport Committee, in its July 2018 interim report on fake news, recommended that the government should use OFCOM’s broadcast regulation powers, “including rules relating to accuracy and impartiality”, as “a basis for setting standards for online content”. It is perhaps testament to the loss of perspective that the internet routinely engenders that a Parliamentary Committee could, in all seriousness, suggest that accuracy and impartiality rules should be applied to the posts and tweets of individual social media users.

Setting regulatory standards for content means imposing more restrictive rules than the general law. That is the regulator’s raison d’etre. But the notion that a stricter standard is a higher standard is problematic when applied to what we say. Consider the frequency with which environmental metaphors – toxic speech, polluted discourse – are now applied to online speech. For an environmental regulator, cleaner may well be better. The same is not true of speech. Offensive or controversial words are not akin to oil washed up on the seashore or chemicals discharged into a river. Objectively ascertainable physical damage caused by an oil spill bears no relation to a human being evaluating and reacting to the merits and demerits of what people say and write.

If we go further and transpose the environmental precautionary principle to speech we then have prior restraint – the opposite of the presumption against prior restraint that has long been regarded as a bulwark of freedom of expression. All the more surprising then that The Times, in its July Ofnet editorial, should complain of the internet that “by the time police and prosecutors are involved the damage has already been done”. That is an invitation to step in and exercise prior restraint.

As an aside, do the press really think that Ofnet would not before long be knocking on their doors to discuss their online editions? That is what happened when ATVOD tried to apply the Audiovisual Media Services Directive to online newspapers that incorporated video. Ironically it was The Times' sister paper, the Sun, that successfully challenged that attempt.

The OFCOM discussion paper observes that there are “reasons to be cautious over whether [the broadcast regime] could be exported wholesale to the internet”. Those reasons include that “expectations of protection or [sic] freedom of expression relating to conversations between individuals may be very different from those relating to content published by organisations”.

US district judge Dalzell said in 1996: “As the most participatory form of mass speech yet developed, the internet deserves the highest protection from governmental intrusion”. The opposite view now seems to be gaining ground: that we individuals are not to be trusted with the power of public speech, that it was a mistake ever to allow anyone to speak or write online without the moderating influence of an editor, and that by hook or by crook the internet genie must be stuffed back in its bottle.

Regulation by regulator, applied to speech, harks back to the bad old days of the Lord Chamberlain and theatres. In a free and open society we do not appoint a Lord Chamberlain of the Internet – even one appointed by Parliament rather than by the Queen - to tell us what we can and cannot say online, whether directly or via the proxy of online intermediaries. The boundaries are rightly set by general laws.

We can of course debate what those laws should be. We can argue about whether intermediary liability laws are appropriately set. We can consider what tortious duties of care apply to online intermediaries and whether those are correctly scoped. We can debate the dividing line between words and conduct. We can discuss the vexed question of an internet that is both reasonably safe for children and fit for grown-ups. We can think about better ways of enforcing laws and providing victims of unlawful behaviour with remedies. These are matters for public debate and for Parliament and the general law within the framework of fundamental rights. None of this requires regulation by regulator. Quite the opposite.

Nor is it appropriate to frame these matters of debate as (in the words of The Times) “an opportunity to impose the rule of law on a legal wilderness where civic instincts have been suspended in favour of unthinking libertarianism for too long”. People who use the internet, like people everywhere, are subject to the rule of law. The many UK internet users who have ended up before the courts, both civil and criminal, are testament to that. Disagreement with the substantive content of the law does not mean that there is a legal vacuum.

What we should be doing is take a hard look at what laws do and don’t apply online (the Law Commission is already looking at social media offences), revise those laws if need be and then look at how they can most appropriately be enforced.

This would involve looking at areas that it is tempting for a government to avoid, such as access to justice. How can we give people quick and easy access to independent tribunals with legitimacy to make decisions about online illegality? The current court system cannot provide that service at scale, and it is quintessentially a job for government rather than private actors. More controversially, is there room for greater use of powers such as ‘internet ASBOs’ to target the worst perpetrators of online illegality? The existing law contains these powers, but they seem to be little used.

It is hard not to think that an internet regulator would be a politically expedient means of avoiding hard questions about how the law should apply to people’s behaviour on the internet. Shifting the problem on to the desk of an Ofnet might look like a convenient solution. It would certainly enable a government to proclaim to the electorate that it had done something about the internet. But that would cast aside many years of principled recognition that individual speech should be governed by the rule of law, not the hand of a regulator.

If we want safety, we should look to the general law to keep us safe. Safe from the unlawful things that people do offline and online. And safe from a Lord Chamberlain of the Internet.

Regulating the internet – intermediaries to perpetrators

Nearly twenty five years after the advent of the Web, and longer since the birth of the internet, we still hear demands that the internet should be regulated - for all the world as if people who use the internet were not already subject to the law. The May 2017 Conservative manifesto erected a towering straw man: “Some people say that it is not for government to regulate when it comes to technology and the internet. We disagree.”  The straw man even found its way into the title of the current House of Lords Communications Committee inquiry: "The Internet: to regulate or not to regulate?".

The choice is not between regulating or not regulating.  If there is a binary choice (and there are often many shades in between) it is between settled laws of general application and fluctuating rules devised and applied by administrative agencies or regulatory bodies; it is between laws that expose particular activities, such as search or hosting, to greater or less liability; or laws that visit them with more or less onerous obligations; it is between regimes that pay more or less regard to fundamental rights; and it is between prioritising perpetrators or intermediaries.

Such niceties can be trampled underfoot in the rush to do something about the internet. Existing generally applicable laws are readily overlooked amid the clamour to tame the internet Wild West, purge illegal, harmful and unacceptable content, leave no safe spaces for malefactors and bring order to the lawless internet.

A recent article by David Anderson Q.C. asked the question 'Who governs the Internet?' and spoke of 'subjecting the tech colossi to the rule of law'. The only acceptable answer to the ‘who governs?’ question is certainly 'the law'. We would at our peril confer the title and powers of Governor of the Internet on a politician, civil servant, government agency or regulator. But as to the rule of law, we should not confuse the existence of laws with disagreement about what, substantively, those laws should consist of. Bookshops and magazine distributors operate, for defamation, under a liability system with some similarities to the hosting regime under the Electronic Commerce Directive. No-one has, or one hopes, would suggest that as a consequence they are not subject to the rule of law.

It is one thing to identify how not to regulate, but it would be foolish to deny that there are real concerns about some of the behaviour that is to be found online. The government is currently working towards a White Paper setting out proposals for legislation to tackle “a range of both legal and illegal harms, from cyberbullying to online child sexual exploitation”. What is to be done about harassment, bullying and other abusive behaviour that is such a significant contributor to the current furore?

Putting aside the debate about intermediary liability and obligations, we could ask whether we are making good enough use of the existing statute book to target perpetrators. The criminal law exists, but can be seen as a blunt instrument. It was for good reason that the Director of Public Prosecutions issued lengthy prosecutorial guidelines for social media offences.

Occasionally the idea of an ‘Internet ASBO’ has been floated. Three years ago a report of the All-Party Parliamentary Inquiry into Antisemitism recommended, adopting an analogy with sexual offences prevention orders, that the Crown Prosecution Service should undertake a “review to examine the applicability of prevention orders to hate crime offences and if appropriate, take steps to implement them.” 

A possible alternative, however, may lie elsewhere on the statute book. The Anti-Social Behaviour, Crime and Policing Act 2014 contains a procedure for some authorities to obtain a civil anti-social behaviour injunction (ASBI) against someone who has engaged or threatens to engage in anti-social behaviour, meaning “conduct that has caused, or is likely to cause, harassment, alarm or distress to any person”. That succintly describes the kind of online behaviour complained of.

Nothing in the legislation restricts an ASBI to offline activities. Indeed over 10 years ago The Daily Telegraph reported an 'internet ASBO' made under predecessor legislation against a 17 year old who had been posting material on the social media platform Bebo, banning him from publishing material that was threatening or abusive and promoted criminal activity.  

ASBIs raise difficult questions of how they should be framed and of proportionality, and there may be legitimate concerns about the broad terms in which anti-social behaviour is defined. Nevertheless the courts to which applications are made have the societal and institutional legitimacy, as well as the experience and capability, to weigh such factors.

The Home Office Statutory Guidance on the use of the 2014 Act powers (revised in December 2017) makes no mention of their use in relation to online behaviour.  That could perhaps usefully be revisited. Another possibility might be to explore extending the ability to apply for an ASBI beyond the authorities, for instance to some voluntary organisations. 

Whilst the debate about how to regulate internet activities and the role of intermediaries is not about to go away, we should not let that detract from the importance of focusing on remedies against the perpetrators themselves.

Time to speak up for Article 15

Article 15 of the ECommerce Directive lays down the basic principle that EU Member States cannot impose a general obligation on internet intermediaries to monitor what people say online. We in the UK may have to start worrying for Article 15. It could easily be overlooked, or even deliberately left behind, when we start the process of converting EU to domestic UK law in preparation for leaving the EU. 

Article 15 is a strong candidate for the most significant piece of internet law in the UK and continental Europe. It is the stent that keeps the arteries of the internet open. It prevents the state from turning internet gateways into checkpoints at which the flow of information could be filtered, controlled and blocked.

The principle embodied in Article 15 is currently under pressure: from policymakers within and outside Brussels, from antagonistic business sectors, from the security establishment and potentially from all manner of speech prohibitionists. The common theme is that online intermediaries – ISPs, telecommunications operators, social media platforms - are gatekeepers who can and should be pressed into active service of the protagonists’ various causes.

Article 15 stands in the way of the blunt instrument of compulsory general monitoring and filtering. It does so not for the benefit of commercial platforms and ISPs, but to fulfil the policy aim of protecting the free flow of information and ultimately the freedom of speech of internet users.

Freedom of expression is not just any old policy aim, but a universal value at the heart of human rights – whether we look at Article 19 of the Universal Declaration of Human Rights, Article 10 of the European Convention, Article 11 of the EU Charter, the US First Amendment or the unwritten British historical attachment to freedom of the press. It is particularly precious because, for better or worse, speech reflects our very selves. “Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.” (John Milton)

Conversely, freedom of expression has always been threatened by governments whose first instinct is to control. That is one reason why, perhaps more so than for any other human right, defenders of free speech find themselves taking principled stands on the most unattractive ground. “Because if you don't stand up for the stuff you don't like, when they come for the stuff you do like, you've already lost.” (Neil Gaiman)

The peculiar vice of compelled general monitoring, however, is that we never get to that point. If the filtered and blocked speech doesn’t see the light of day it never gets to be debated, prosecuted, tested, criticised or defended. To some, that may be a virtue not a vice.

Where freedom of speech is concerned, if principle is allowed to take second place to the exigencies of the moment we find ourselves not so much on a slippery slope as in a headlong rush down the Cresta Run. So it is with Article 15. The queue of noble causes on whose behalf we are urged to compel gateways to be gatekeepers - countering copyright infringement, trolling, hate speech, terrorism, pornography, fake news and the rest - stretches round the block.

We defend the right to bad speech for the sake of the good. We understand the impossibility of drawing a bright line between bad and good speech. We regulate bad speech only at the peril of the good. The peril is greater when the regulatory implement of choice is a tool as blunt as general monitoring.

Article 15 lays down a principle that applies across the board, from copyright to terrorism. EU Member States must not impose on internet intermediaries (conduits, hosts and network caches) a general obligation to monitor or actively to seek facts or circumstances indicating illegal activity. Intermediaries cannot be made to snuffle around their systems looking for unlawful activities. Article 15 goes hand in hand with the Directive’s liability shields under which conduits, hosts and network caches have various degrees of protection from criminal and civil liability for the activities of their users.

It is only too easy for policymakers to point the finger at intermediaries and demand that they do more to control the unpleasant and sometimes illegal things that people do on their systems. Policymakers see intermediaries as points of least cost enforcement: it is more efficient to enforce at a chokepoint than to chase tens of thousands of individual wrongdoers. The theory is made explicit in Recital (59) of the EU Copyright in the Information Society Directive:

“In the digital environment, in particular, the services of intermediaries may increasingly be used by third parties for infringing activities. In many cases such intermediaries are best placed to bring such infringing activities to an end.”

Mr Justice Arnold in Cartier explained the policy that underlies Recital (59):

“As can be seen from recital (59) to the Information Society Directive, the economic logic of granting injunctions against intermediaries such as ISPs is that they are the "lowest cost avoiders" of infringement. That is to say, it is economically more efficient to require intermediaries to take action to prevent infringement occurring via their services than it is to require rightholders to take action directly against infringers. Whether that is correct as a matter of economics is not for me to judge. Nor is it for me to judge whether it is good policy in other ways. That judgement has already been made by the legislators …”

At the same time, Article 15 of the ECommerce Directive constrains the breadth of injunctions that courts can grant against intermediaries under the Copyright and Enforcement Directives. The effect of Article 15 can be seen in the ECJ decisions of SABAM v Scarlet and SABAM v Netlog prohibiting content filtering injunctions, and in Arnold J’s Cartier judgment itself:

“If ISPs could be required to block websites without having actual knowledge of infringing activity, that would be tantamount to a general obligation to monitor.”

But if intermediaries are best placed to stop infringement, why should Article 15 constrain what can be imposed on them? Why shouldn’t the intermediaries be required to monitor?

The only sense in which intermediaries could be seen as best placed is that, since users’ communications flow through their systems, they have the potential to be technical chokepoints. In every other respect intermediaries are poorly placed to make decisions on legality of content and thus on what to block.

Intermediary enforcement risks exaggerating the ease with which unlawful behaviour can be identified, often assuming that illegal content is identifiable simply by looking at it. In relatively few categories is illegality manifest. Legality is predominantly a matter of factual investigation and judgement. That is why it is preferable to have independent courts ruling on matters of illegality rather than compelling private platforms to attempt it and have them overblock out of fear of liability or sanctions.

A too narrowly focused cost analysis tends to underplay or even ignore the negative externalities and unintended consequences of compelling gateways to act as gatekeepers. It excludes any broader implications of reinforcing chokepoints, the creation of a climate in which playing gatekeeper on behalf of the state and its proxies becomes the norm. In a broader context the least cost enforcer may turn out to be highest cost.

Notice-based intermediary liability systems result in material being removed before a court determines whether it is unlawful. That already carries a risk of overcautious blocking or removal. Compelled proactive monitoring and filtering, since it blocks information about which no complaint has been made, moves the scale of risk to another level. It is akin to prior restraint on a grand scale, conducted not by courts after hearing evidence but by private entities made to act as investigator, prosecutor, judge, jury and executioner.

Our aversion to prior restraint reflects also that the public are sometimes well served by the airing of something that at first blush might appear to be against the strict letter of the law. Speech may be rendered lawful by a public interest defence, or by fundamental freedom of speech considerations. Or a court might decide that even though unlawful the appropriate remedy is damages but not removal. Legality of speech, even in areas such as copyright, can be a heavily nuanced matter. Proactive general monitoring obligations allow for no such subtlety.

Some may argue that in modern times the quid pro quo for living with freedom of speech has been that speech is generally mediated through professional, responsible editors. And that we need to put that genie back in the bottle by converting online intermediaries into editors and publishers, responsible for what other people say on their platforms.

Never mind whether that could be achieved, the argument misunderstands the nature of freedom of expression. The great advance of the internet has been to bring about something akin to the golden age of pamphleteering, freeing mass individual speech from the grip of the mass media. District Judge Dalzell was right when, in ACLU v Reno, he said:

“As the most participatory form of mass speech yet developed, the internet deserves the highest protection from governmental intrusion.”

The US Supreme Court in the same case said:

“Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer.”

Those quotations were from 1996 and 1997. They are, if anything, more relevant now. Individual, unmediated speech deserves more, not less, protection than the traditional press.

It may be discomfiting that the kind of vitriol that used to be confined to Speaker's Corner can now reach an audience of millions. But freedom of individual speech was never something only to be tolerated as a tourist curiosity, or indulged as long as it was hidden away in a pub saloon bar. Nor, as we know from the ECtHR decision in Handyside, is freedom of expression confined to that which would not offend in a genteel drawing room.

Article 19 of the 1948 Universal Convention on Human Rights is not predicated on the assumption of mediated speech. It articulates an individual, personal right that transcends place, time and medium and could have been written with the internet in mind:

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

Article 15 stands squarely in the path of compelling mediated speech through the instrument of general monitoring. So why might it be vulnerable to being overlooked in the Brexit process?

Caveat: what follows is based on the existing Conservative government’s plans for a Great Repeal Bill and is subject to the outcome of the General Election.

Article 15 and Brexit

[Note: this section is now overtaken by the European Union (Withdrawal) Act 2018. Article 15 is probably saved by virtue of Section 4 of the Act.] 

Article 15 operates at several levels. If a Member State were to legislate in breach of Article 15, a national court would be obliged to disapply the legislation. So it acts as a powerful constraint on Member States at the policy and legislative level. As we have seen it also constrains Member States’ courts. They cannot issue an order that would impose a general monitoring obligation. They cannot interpret a domestic statute or develop a common law obligation in a way that is contrary to Article 15. Regulatory and enforcement bodies are similarly constrained.

The Brexit starting point is that the incumbent government has committed to continuing existing EU law through the Great Repeal Bill. Theresa May says in the introduction to the Great Repeal Bill White Paper:

“Our decision to convert the ‘acquis’ – the body of European legislation – into UK law at the moment we repeal the European Communities Act is an essential part of this plan.

This approach will provide maximum certainty as we leave the EU. The same rules and laws will apply on the day after exit as on the day before. It will then be for democratically elected representatives in the UK to decide on any changes to that law, after full scrutiny and proper debate.

… Th[e Great Repeal] Bill will, wherever practical and appropriate, convert EU law into UK law from the day we leave so that we can make the right decisions in the national interest at a time that we choose.”

On that basis Article 15 ought to be continued post-Brexit. However there is a technical problem. Although it is in a Directive, and so was required to be implemented in UK law, the text of Article 15 appears nowhere in UK domestic legislation. Depending on how the proposed Great Repeal Bill is drafted, Article 15 may have to be specifically written in to UK legislation in order to continue post-Brexit.

The White Paper recognises the need to write EU Regulations into domestic law, but appears to assume that since a Directive will already have been implemented in UK domestic law it just needs to be preserved post-Brexit:

“• the Bill will convert directly-applicable EU law (EU regulations) into UK law;

• it will preserve all the laws we have made in the UK to implement our EU obligations”

Article 15 could run the risk of falling between the cracks.

In any event the desirability of continuing Article 15 may not be universally accepted. UK Music, in its ‘Music 2017 Manifesto’, has noted the opportunity that Brexit presents to ‘place responsibility on internet service providers and require them to have a duty of care for copyright protected music’. If that implies proactive monitoring it would put Article 15 in question. Where one industry leads others may follow. A government interested for its own purposes in turning the screw on intermediaries might not welcome the impediment of Article 15. It might be tempted to invoke the ‘wherever practicable and appropriate’ White Paper qualification on continuation of existing EU law.

“Freedom of expression is not self-perpetuating, but rather has to be maintained through the constant vigilance of those who care about it.” So said Index on Censorship in 1972. The run-up to Brexit may be a time for especial vigilance.

[Amended 7 April 2019 to include reference to the European Union (Withdrawal) Act 2018.]