Case Kalda v. Estionia

Importance Nature Application Number Case language State Date (dd/mm/yyyy)
2 Judgement 17429/10 English Estonia 19/01/2016

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Kalda v. Estonia - 17429/10

Article 10-1

Freedom to receive information

Restrictions placed on prisoner’s access to certain Internet sites containing legal information: violation

The case concerned the applicant’s complaint about the authorities’ refusal to grant him access to several internet websites, preventing him thereby to carry out legal research. The applicant declared he was involved in a number of legal disputes with the prison administration and needed access to those websites in order to be able to defend his rights in Court. The sites included the Council of Europe Information Office in Tallinn’s website (containing translations into Estonian of the rulings of the European Court of Human Rights), and the Chancellor of Justice’s and the Estonian Parliament’s website. The applicant challenged this decision before domestic court – and eventually before the Estonian Supreme Court. The latter concluded that the access to Internet sites beyond those authorised by the prison authorities “[…] was justified by the need to achieve […] the need to secure public safety […]. Moreover, granting detainees access to these Internet sites could increase the risk of their engaging in prohibited communication; this in turn would necessitate increased levels of control (and therefore costs). Thus, there were no alternative, equally effective means […] of achieving the legitimate aim in question” (§§16-17). The applicant’s complaint concerned “a particular means of accessing – specifically, via the Internet – the information published on certain websites and thus freely available in the public domain” (§43).

The Court recalled that imprisonment inevitably involved a number of restrictions on prisoners’ communications with the outside world, including on their ability to receive information. Article 10 could not be interpreted as imposing a general obligation to provide access to the Internet, or to specific Internet sites, for prisoners. However, in the circumstances of the case, given that under domestic law prisoners were granted limited access to the Internet – including access to the official databases of legislation and judicial decisions, the restriction of access to other sites that also contained legal information had constituted an interference with the applicant’s right to receive information.

The Court acknowledged that the restriction on prisoners’ use of the internet was prescribed by law: prisoners can only have access to certain sites containing information. However the Court considered that the restriction was not necessary. The websites to which the applicant wished to have access “predominantly contained legal information and information related to fundamental rights, including the rights of prisoners [… and] were meant for legal researches rather making specific requests” (§50). Moreover, the Court went on to note that “an increasing amount of services and information is only available on the Internet” including legal information (§52).

As regards the security argument, the Court declared that “that the domestic courts undertook no detailed analysis as to the security risks allegedly emerging from the access to the three additional websites in question, also having regard to the fact that these were websites of State authorities and of an international organisation” (§53). As regards the budgetary argument put forward by the authorities, the Court observed that “that the Supreme Court and the Government have failed to convincingly demonstrate that giving the applicant access to three additional websites would have caused any noteworthy additional costs” (§53). Accordingly, the Court found a violation of Article 10.

Judge Kjølbro expressed a dissenting opinion on that matter. Although he shared “the view of the majority that the interference was prescribed by law and pursued legitimate aims [… he disagreed] with the majority that the interference was not ‘necessary in a democratic society’ as required by Article 10 of the Convention” (DO, §3). According to him, this judgment “is close to recognising a right of prisoners to access to relevant webpages on the Internet” (DO, §13). Such a significant step, he argued, should not be taken without an assessment of the law and practices in the Contracting states. Overall “The question of prisoners’ right to access to the Internet, in general or in some restricted form, is a novel issue in the Court’s case-law” (DO, §4). Therefore, “the question should […] not have been decided by a Chamber, but by the Grand Chamber” (DO, §15).