The European Court of Human Rights (ECtHR) has found that the seizure and retention of a server for 7.5 months in criminal proceedings against a third party violated freedom of expression and protection of property.
In 2010, a publisher complained to the Bulgarian police that one of their books was being circulated on the internet in breach of copyright under the Criminal Code. The investigation found that the site which uploaded the book was partially hosted on a server owned by applicant. The police seized the server, which was used by the applicant to host a website dedicated to anime culture.
On a number of occasions, the applicant requested return of the server as, without the data contained on it, the website was restricted, causing him financial loss. The server was returned in February 2011, without having been examined for the purposes of the criminal investigation.
The applicant complained about the seizure and retention of his server under in particular Article 1 of Protocol No. 1 (protection of property) to the European Convention on Human Rights and Article 10 (freedom of expression) of the Convention.
The Court observed that the applicant’s website constituted a means of exercising his 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. Therefore the interference with the applicant’s freedom of expression was the result of the retention of both his hardware – the server – and the data held on it.
While the interference of the police served a legitimate aim, the retention of the applicant’s server as evidence in criminal proceedings against a third party for a prolonged period of time was disproportionate. Furthermore, the evidence was never 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.
For the same reasons, the Court found the police failed to strike a fair balance between the legitimate aim in investigating the crime and the applicant’s rights under Article 1 of Protocol No. 1.
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.
Click here for the full decision.