When Exceptional Restrictions Stop Being Exceptional: The Court of Justice of the European Union and the Expanding Reach of the Russia Today Ban
A recent CJEU decision could hold individuals liable for sharing the content of sanctioned broadcasters.
History shows that freedom of expression comes under its greatest pressure during periods of war. Faced with military conflict or perceived threats to national security, governments have repeatedly concluded that exceptional dangers justify exceptional restrictions on speech. During the First World War, the United States enacted the Espionage Act of 1917 and the Sedition Act of 1918, leading to the prosecution and imprisonment of thousands of individuals for anti-war speech, including the socialist leader Eugene Debs. Similar patterns emerged in Germany. The Weimar Republic did not collapse because it tolerated Nazi speech. It imposed extensive censorship and emergency restrictions, many of which were later exploited by the Nazis themselves to dismantle democracy after taking power. This demonstrates a recurring constitutional challenge. Exceptional measures rarely remain confined to their original purpose. Instead, they often expand in scope, applying to new actors, new forms of communication and new circumstances.
The European Union’s response to Russia’s invasion of Ukraine fits within the above historical tradition. Describing Russia Today (RT) and Sputnik as central components of “an international campaign of media manipulation and distortion of facts,” the Council of the European Union prohibited the broadcasting and distribution of their content throughout the region. The legality of those measures was subsequently upheld by the Court of Justice of the European Union (CJEU/Court), which accepted that the circumstances created by Russia’s aggression justified the action taken. The broader sanctions regime also illustrates the progressive expansion of these exceptional measures. In fact, the EU has imposed restrictive measures not only on Russian state-controlled media, but also on individuals alleged to have engaged in “information manipulation and interference.” For example, Jacques Baud, a former Swiss army colonel and former NATO official, was one of several persons subjected to travel restrictions and an asset freeze after the Council alleged that he promoted pro-Russian narratives through media appearances
The Court’s recent judgment in Case C-67/25 concerns a different question, but one with potentially broad implications. It does not ask whether RT itself may lawfully be prohibited from broadcasting. That has already been settled. Rather, it asks how far that prohibition extends once RT’s content leaves the broadcaster. Can a private individual who republishes RT material through a free website become subject to the same restriction?
From Broadcasters to Disseminators
The case reached the Court through the preliminary ruling procedure under Article 267 of the Treaty on the Functioning of the European Union (TFEU). Under that procedure, national courts may ask the CJEU to interpret EU law where the answer is necessary to resolve proceedings before them. The CJEU does not determine whether the defendants are guilty of a criminal offence. Rather, it provides an authoritative interpretation of EU law that the referring court must subsequently apply to the facts before it.
The reference arose from criminal proceedings before a German court concerning three individuals accused of repeatedly making RT Germany videos available through a publicly accessible website financed exclusively through voluntary donations. The referring court asked whether such individuals could qualify as “operators” within the meaning of Article 2f(1) of the aforementioned Regulation. The article prohibits operators from broadcasting, enabling, facilitating or otherwise contributing to the broadcast of, amongst others, RT Germany, including through distribution through internet service providers, internet video-sharing platforms or applications.
The Court noted that the concept of ‘operator’ extends to “any natural or legal person directly or indirectly responsible for making available or transmitting that content to the public,” including where the activity is non-remunerated or carried out through a website financed by voluntary contributions. Specifically, the CJEU noted that, because the website relied on voluntary contributions from third parties, identifying the origins of its funding and, consequently, any potential influence over the content it broadcast could help prevent interference by foreign nationals. As such, the CJEU found that the website “may be used to relay the propaganda campaign which the Russian Federation engages in and which Regulation No 833/2014 seeks to prohibit.”
One may argue that a prohibition applying only to RT itself would be easy to circumvent in an online environment where information is replicated instantaneously by countless intermediaries. Yet every extension of an exceptional speech restriction raises a fresh constitutional question. Restricting the broadcaster itself is one thing. Extending that restriction to those who subsequently disseminate its content is another. It is that question, rather than the fate of RT itself, that makes Case C-67/25 a deeply concerning judgment for freedom of expression.
Beyond RT: Effectiveness, Proportionality and the Limits of the Ban
At its core, Case C-67/25 permits national courts to treat the republication of RT content by third parties as falling within the EU prohibition on dissemination, even where those third parties are independent, volunteer-funded websites and do not themselves produce or control RT’s broadcasts.
In grappling with the question posed by the German court, the CJEU proceeds on the implicit assumption that once the restriction imposed on RT has been accepted as proportionate, extending that restriction to others becomes primarily a question of ensuring the Regulation’s effectiveness. The result is a judgment in which effet utile largely eclipses proportionality. The CJEU said remarkably little about why the broader interpretation it adopts represents the least restrictive means of achieving the same objective. It did not examine whether extending the prohibition to non-profit-making third parties who merely reproduce RT material strikes a fair balance between the objective of combating Russian state propaganda and the right to freedom of expression guaranteed by Article 11 of the Charter if Fundamental Rights of the European Union (Charter) on the right to freedom of expression. Instead, the restriction is largely treated as self-justifying.
This is particularly notable because the Court has demonstrated elsewhere that it is capable of undertaking rigorous proportionality review where freedom of expression is at stake. In Commission v Hungary, the CJEU carefully assessed whether the measures in question were suitable, necessary and proportionate in light of the Charter before concluding that they could not be justified. No comparable exercise appears in Case C-67/25. The contrast raises legitimate questions about the consistency of the Court’s approach. It gives the impression that proportionality is applied selectively, rather than forming an indispensable component of the Court’s fundamental rights analysis.
Nor does the Court identify a principled limiting criterion. If liability depends upon making prohibited content available, how should courts distinguish between dissemination intended to amplify RT’s messaging and dissemination undertaken for entirely different purposes? Investigative journalists regularly reproduce original broadcasts to expose disinformation. Researchers preserve and analyse the material for historical and academic purposes. Documentary filmmakers rely upon authentic footage because it provides the most accurate record of events. Civil society organisations monitoring foreign influence operations frequently publish examples of the material they analyse. None of these actors share RT’s objectives. Yet each may, in one sense, make the prohibited material available to others. The Court offers almost no guidance as to where the legal boundary lies.
Admittedly, those questions were not directly before the Court. Under Article 267 TFEU, the Court answers the questions referred by the national court rather than constructing a comprehensive framework governing every conceivable factual situation. Even so, the broader the interpretation adopted, the greater the need for clear limiting principles. Those principles are largely absent from the judgment.
However, the right freedom of expression depends not only upon substantive protection, but also upon legal certainty. Individuals should be able to foresee, with reasonable confidence, whether their conduct falls within the scope of a legal prohibition. The CJEU’s interpretation undoubtedly makes it more difficult to circumvent the prohibition on RT content. Whether it provides equally clear guidance to journalists, academics, researchers and others who reproduce such material for legitimate public interest purposes is considerably less obvious.
Conclusion
The significance of Case C-67/25 extends beyond RT or the facts of the German proceedings. It reflects a broader constitutional shift. A severe restriction, originally directed at a specific state-controlled broadcaster during a geopolitical crisis, has been extended to encompass independent third parties who reproduce the broadcaster’s content, including operators of websites funded solely through voluntary donations. Whether every such reproduction will ultimately attract criminal liability remains a matter for the national courts. What the CJEU has done is make that possibility legally conceivable.
Liberal democracies are often judged not by how they protect freedom of expression in ordinary times, but by how they protect it during periods of crisis. History demonstrates that exceptional measures have a tendency to expand beyond the circumstances that first justified them. That is precisely why proportionality and legal certainty matter. They ensure that exceptional restrictions remain exceptional. The concern raised by Case C-67/25 is not simply that the CJEU interpreted Article 2f broadly. It is that, in doing so, it offered little explanation of where the constitutional limits of that interpretation lie.
Natalie Alkiviadou is a Senior Research Fellow at The Future of Free Speech. Her research interests lie in freedom of expression, the far-right, hate speech, hate crime, and non-discrimination.