European court dismisses invalidity action over EU content blockade for ISPs
In 2014, Russia invades eastern Ukraine. In February 2022, Russia attempts to conquer Kiev and tries to take the entire country. It is the beginning of the biggest war on European soil since 1945.
A war in this day and age has long since ceased to be fought only at the front. Russia is also starting a (dis)information war, trying to influence elections and politics in the EU and the US, among other things. The EU is rightly concerned about this and wants to quickly flex its muscle. A few days after the large-scale Russian invasion in 2022, the EU introduces media sanctions for the first time in its existence.
The EU Council bans the broadcasting and retransmission of certain Russian media channels including Russia Today (RT) and Sputnik. The list of banned channels continues to expand to this day.
In principle, it is obvious that the sanctions have a legitimate purpose. Russian disinformation and propaganda are disrupting the society of EU member states. The only question is whether the measures introduced are also a justified means. Several parties, including the Internet service providers (ISPs) tasked with implementing the blockades, are concerned. These are unprecedented far-reaching measures, introduced hastily (within 5 days of the invasion) and with limited justification. All the while, the sanctions are a serious curtailment of media and ISP freedom of expression in the EU and the right to information of European citizens. Especially at this time, when the foundations of the rule of law are so under pressure, it is important not to restrict fundamental rights too easily under the guise of protecting those same fundamental freedoms.
With this principled commitment, a coalition of Dutch ISPs, consisting of A2B Internet, BIT and Freedom Internet and supported by the Dutch Association of Journalists, Bits of Freedom, the European Federation of Journalists and the Association of the Internet Industry, is launching a nullity action before the General Court of the Court of Justice of the European Union, arguing as follows:
The Council is not empowered to set the sanctions on the basis of its Common Foreign and Security Policy (CFSP). The Council is essentially pursuing media policy here and must follow the ordinary, democratic legislative procedure involving the European Parliament.
The directive and regulation in question (which set out the sanctions) constitute an impermissible infringement of freedom of expression and the right to information. The ban is unlimited in time and includes any type of content from the banned media channels, regardless of for what purpose, in what context and published by whom. Moreover, not all such content is necessarily unlawful. The measures and the effectiveness of the goals the blockade is intended to achieve are also insufficiently justified. This restriction on EU fundamental rights is therefore not provided for by law, not proportionate and not necessary.
The Council violated the right to good administration, including the duty to state reasons and documentation. The Council has failed to explain why the measures are necessary and proportionate and how they are consistent with fundamental rights. The Council also failed to be transparent about the decision-making process and make public the documents that led to the measures. That the Council was under time pressure because the EU wanted to respond immediately to Russian aggression cannot excuse it from these duties. That is simply how a rule of law works, and moreover, the measures have only expanded since their introduction, rather than being carefully justified and substantiated.
The Council, supported by the EU High Representative, the European Commission and member states Estonia, Latvia and Lithuania, mainly pushes the point that the coalition would not be admissible because they do not meet the requirement of being "directly affected. It further argues that the ban should not be interpreted so broadly at all, and mainly refers to a previous ruling by the European court, which was brought by one of the Russian media institutions affected by the measures in question. In this case, where the facts and stakes were substantially different, the nullity of the measures was rejected.
Almost three years later, the CJEU General Court does ruling in this case and dismissed the ISPs' invalidity action. According to the Court, the Council had the power to adopt the restrictive measures, including a ban on retransmission of Russian state-controlled media. According to the General Court, the measures are necessary and proportionate to combat disinformation and destabilization following the Russian invasion of Ukraine and the Council provided sufficient justification for the measures.
The coalition is disappointed that the General Court sees Russian aggression as justification for a far-reaching and disproportionate restriction of fundamental rights applicable in the EU, and finds that many of its arguments have not been sufficiently considered.
Joran Spauwen, Lotte Orange, Jens van den Brink and Else Green assisted the ISP coalition in these proceedings. According to them, the Court's ruling is "disappointing, especially at a time when democratic values are under pressure worldwide."
The coalition is still considering a possible appeal to the CJEU.
