In a ruling dated February 29, 2024, the Municipal Court in Prague declared that the blocking of websites carried out by internet service providers in Febuary 2022 was illegal. The blocked websites were labeled by the state as „disinformation websites“.

According to the legal opinion of the Municipal Court, the mobile operator is liable for the damage caused by the illegal blocking to the owner of the website. The subject matter of these proceedings is, so to speak, a „private law“ branch of the case, in which the court address the liability of internet providers for the damage caused to the operators of individual websites by the fact that their websites were blocked and thus made unavailable to their users as a result of the actions of specific entities. In contrast, the legality of the state’s – Czech Republic’s – actions was not at issue in these proceedings.

In 2022, a completely unusual situation arose in which private entities blocked specifically defined content on the internet following a call by the state – Czech Republic. The situation therefore raised, inter alia, the question of whether the Government of the Czech Republic, through the mobile operators, may have infringed the prohibition on censorship laid down in Article 17 paragraph 3 of the Charter of Fundamental Rights and Freedoms and consequently whether the mobile operators may be liable for the damage caused by that practice.

The decision of the Municipal Court in Prague removes for the time being a highly alarming situation where no one was actually held responsible for the numerous violations of law from February 2022 on the issue of blocking of the so-called „disinformation websites“.

Website blocking as a clear violation of European law

Our law firm represents a website operator who was affected by the above-mentioned practice of some mobile operators when these technically prevented access to his website on their networks. The client sought first of all the „unblocking“ of his website, and subsequently a compensation for damages caused by the illegal blocking. We argued that the operation of any (legal) website is certainly a manifestation of the right to do business, which is protected in the Czech Republic from interference by third parties.

In the context of the internet environment, the most crucial is the Regulation 2015/2120 of the European Parliament, the so-called Regulation on Net Neutrality[1] (hereinafter referred to as the „Regulation„), which undoubtedly has an impact on the situation at hand, and which, in particular in its Article 3, sets out the obligations of operators (internet access service providers) to ensure access to the open internet.

It provides, inter alia, that: ‚Internet access service providers shall not implement traffic management measures which go beyond those set out in the second subparagraph and, in particular, shall not block, slow down, alter, restrict, disrupt, degrade or discriminate against specific content, applications or services or specific categories thereof.‘ There are a total of three exceptions to this prohibition, which are – ensuring compliance with the law, maintaining network integrity and security, and preventing network congestion. In other words, there is an explicit prohibition in terms of directly binding European law to do what individual operators in the Czech Republic have done in Febuary, 2022.

While the court of first instance found that there was no violation of the Net Neutrality Regulation, the Municipal Court in Prague ruled that the blocking by individual operators did not fall under any exception and that the blocking by the mobile operator was thus in violation of a directly binding EU legislation.

In the opinion of the Municipal Court in Prague, the individual operators, regardless of the existence of a non-legally binding State guidance, should have independently assessed their duties under the binding legal framework (in particular the Net Neutrality Regulation) and, on the contrary,  should not have relied on the non-legally binding nature of the state recommendation. The Municipal Court emphasized that the mobile operators are usually supranational companies, which has professionally educated staff and lawyers who should have assessed that such their actions would violate the Net Neutrality Regulation, and that the State’s non-binding call did not establish the operator’s ability to avoid responsibility for the breach of binding EU-legislation.

In doing so, the Municipal Court considered it essential that even if the mobile operator had acted in reliance on the validity of the State’s request from the point of view of general social settings, it did not thereby waive its liability for breach of a binding legal regulation governing the conduct of its activities.

It was argued by our law firm, among other things, that the mobile operators procedure was completely non-transparent, since the public only gradually, usually thanks to the work of investigative journalists, learned what actually happened and who took what individual specific steps to block specifically selected content on the internet. It was crucial that the Czech legal system does not recognise the concept of „disinformation“ and it is therefore completely unacceptable for someone’s property rights to be infringed on the basis of something that the law does not define.

The case now returns to the court of first instance, which will next decide on the exact amount of compensation for the damage caused by the illegal blocking.

Resolution of the government of the Czech Republic and National Cyber Operations Centre recommendation

For context, we add that the blocking of websites by operators or administrators of the Czech .cz domain was likely done in response to the Czech Government Resolution No. 127 of 25 February 2022 and the follow-up recommendation of the National Cyber Operations Centre (hereinafter also as the “NCOC”) of the same date, the latter of which listed specific websites to be blocked. The legal nature of both of these documents has been previously addressed by the Czech courts.

In this case, there have been a number of decisions of the Municipal Court, the Supreme Administrative Court, and in one case even the Constitutional Court, all of which, in simple terms, dealt with the legality of the State’s actions in the context of so-called interference actions brought under the provisions of Section 82 of the Administrative Procedure Code.[2]  Simply put, all the decisions to date have stated that the documents produced by the state were always merely recommendations and not legally binding acts.

In the proceedings before the administrative courts, the main issue examined was the binding nature and legal character of the invitation by the National Cyber Operations Centre and its effects on the legal spheres of private persons.

The decisions of the various administrative courts show that they consider the above-mentioned NCOC invitation primarily as a recommendation, thus not as a normative decision of the State. For example, in its judgment of August 9, 2023, the Supreme Administrative Court held in relation to the NCOC’s letter that: ‚In the present case, the intervention in question does not carry any threat of sanction against private law subjects; in particular, it lacks one of the fundamental attributes of law – enforceability. The Court is aware of the fact that a recommendation (instruction/request) has been made in the public domain to private actors to take a certain type of action, the consequences of which the applicants claim to feel. However, this is not an enforceable action by public authorities, but rather a non-binding political proclamation of a recommendatory nature.“

This opinion has been confirmed in a number of other decisions of administrative courts, e.g. in the judgment of the Supreme Administrative Court from December 9, 2022, or earlier in the decision of the Municipal Court in Prague from June 24, 2022, where the latter literally stated that: „In the case at hand, it was purely up to the will of the CZ.NIC domain administrator and the mobile operators whether or not they would listen to the ‚request‘ of the public authorities. The text of the recommendation, which is known to the court from its official activity, corresponds to this, in which the National Cyber Operations Centre does not order the addressees of the letter to take certain actions, but merely informs them in general terms about the situation and asks them to take preventive measures.“

In other words, the constant administrative case law refers to the legal non-binding nature of the invitation, and the autonomy of the decision of the operators, who were non-bindingly invited to block specific content on the Internet, or were advised to do so by a non-binding political proclamation of an advisory nature.

Conclusion

The recent ruling of the Municipal Court in Prague, almost exactly two years after the blocking of the website, which in our opinion is unprecedented in the Czech legal community, removes a completely unsatisfactory situation in which it appeared that no subject was legally responsible for the damages cause – such a state of affairs would be completely unacceptable in the rule of law.

It is clear from the decision of the Municipal Court in Prague that private legal liability for the blocking of websites rests with the individual internet service providers which themselves carried out the blocking. The key point here is that they incorrectly evaluated the non-binding nature of the State’s recommendation and absolutely disregarded their obligations arising from the directly binding Net Neutrality Regulation in its context.

The actions of the mobile operator must be viewed very critically; it is an extraordinary excess, displaying characteristics similar to censorship and controlling and making inaccessible the content of specific websites.

The Municipal Court in Prague correctly did not address the type of website in question, considering as relevant the absence of any normative legal act or decision of the competent authority justifying the defendant’s conduct.

After two years, the Municipal Court in Prague made it clear that the blocker had acted entirely unlawfully, in breach of the Regulation of the European Parliament.

The team of AK Sudolská

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[1] Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015 laying down measures concerning open internet access and amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services and Regulation (EU) No 531/2012 on roaming on public mobile communications networks within the Union (Text with EEA relevance).

[2] Act No. 150/2002 Coll., Administrative Procedure Code.

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