ECHR upholds freedom of expression applies to both content of information and dissemination means 

On 26 March 2020, the European Court of Human Rights (ECHR) issued a judgement that unproportioned retention of a server could impede freedom of expression in the case Pendov v Bulgaria (Application No. 44229/11).

The complaint of the applicant (Pendov) was based on Articles 6, 7, 8 and 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention) and Article 1 of Protocol No. 1 to the Convention. The court examined the complaints under Article 1 of Protocol No. 1 and Articles 8 and 10 of the European Convention.

The ECHR rejected the complaint under Article 8 for non-exhaustion of domestic remedies. The remaining claims – under Articles 1 of the Protocol No. 1 and under Article 10 of the Convention – were declared admissible and reviewed on merit.

The applicant’s computer server was seized and retained by a local public prosecutor’s office for about seven and a half months in the context of criminal proceedings against a third party. The server hosted a website that was subject to a criminal investigation for copyright violation. The server also hosted the applicant’s websites dedicated to Japanese anime culture.

A prolonged period of retention of the applicant’s server and information led to the initial unavailability of the applicant’s website, followed by heavily limited functionality for several months. While the website was not subject to any investigation or allegations, the prosecution's measures lead to the restriction of freedom of expression.

The Court confirmed that freedom of expression in Article 10 of the Convention applies not only to the content of information, but also to the means of dissemination since any restriction imposed on dissemination inevitably impedes the right to receive and impart information and ideas.

The interference by authorities had valid legal grounds in the Bulgarian Code of Criminal Procedure and served the legitimate aims of prevention of disorder and crime and the protection of the rights of others. However, the ECHR established that the retention of the applicant’s server as evidence in criminal proceedings against a third party for a prolonged period of time was disproportionate. Moreover, this evidence was in fact not examined for the purposes of the investigation, and the prosecutors remained inactive and made no effort to remedy the effects of their actions on the applicant’s freedom of expression.

Ultimately, the Court held that there had been a violation of Article 1 of Protocol No. 1 and of Article 10 of the Convention and awarded non-pecuniary damages to the applicant.

The ECRH upheld the importance of the Internet for enhancing the public’s access to news and information, and the importance of all the related instruments for their dissemination such as servers and websites.

For more information on freedom of expression and media regulation in Bulgaria, contact your regular CMS source or local CMS experts: Anna Tanova and Tanya Stefanova.