Case Summary and Outcome

The Tagansky District Court of Moscow, Russia upheld an order from the Magistrates Court №422 in the Tagansky District which had held that Twitter Inc. failed to remove access to those Internet information resources that had to be removed in accordance with the legislation of the Russian Federation. Roskomnadzor – Russia’s Federal Service for Supervision of Communications, Information Technology, and Mass Media – had sent notices to Twitter, requesting it remove access to Twitter posts that called for participation in unauthorized rallies. Roskomnadzor compiled a protocol on an administrative offense based on Twitter’s failure to comply with its requests. The Court held that Twitter had failed to delete the requested information and there was an obligation to do so under law. The Magistrates Court had also found Twitter guilty of two more administrative offenses in two separate cases, and, in total in the three cases, the Court imposed fines in the amount of 8.9 million rubles (around USD$117.4 thousand at the time). 

Columbia Global Freedom of Expression notes that some of the information contained in this report was derived from secondary sources.

Facts

The Russian Deputy Prosecutor General issued a request to  Roskomnadzor – Russia’s Federal Service for Supervision of Communications, Information Technology, and Mass Media – that Roskomnadzor restrict access to a TikTok post that called for participation in an unauthorized protest rally on January 23, 2021 in support of Russian opposition leader Alexey Navalny. The request authorized Roskomnadzor to follow up with similar restriction procedures if calls for participation in mass rallies, including those that addressed minors, were identified on other social networks. Accordingly, Roskomnadzor sent 16 restriction notices in respect of 16 Twitter posts to Twitter Inc. Twitter failed to act in compliance with the notices and did not remove access to the information. Roskomnadzor then filed a protocol on an administrative violation against Twitter before the Magistrates’ Court №422 in the Tagansky District of Moscow. 

Two more administrative protocols against Twitter were registered by Roskomnadzor at Magistrates’ Court №422 in the Tagansky District of Moscow, Russia, on March 3, 2021. According to Interfax, Roskomnadzor followed up with an announcement that it would enforce a slowdown of Twitter’s traffic due to the platform’s failure to remove prohibited content. Interfax also reported that Roksomnadzor had been compiling administrative protocols against social media companies since February 11, 2021 in response to the companies’ failure to remove “calls for minors to attend unauthorized rallies.” 

On April 2, 2021, the Magistrates’ Court issued a ruling on an administrative penalty, citing the provisions of Federal Law No. 149-FZ “On Information, Information Technologies and Information Protection” and finding Twitter guilty of an administrative offense under Part 2 of Art. 13.41 of the Code of Administrative Offenses of the Russian Federation – “failure to delete the information if the obligation to delete such information is provided for by the legislation of the Russian Federation.”  Judge Vakhrameev T.S. determined that Twitter Inc., being the operator of the Twitter social network, “failed to delete the information if the obligation to delete such information is provided for by the legislation of the Russian Federation on information, information technologies, and information protection” [p. 1]. 

Federal Law No. 149-FZ “On Information, Information Technologies, and Information Protection” regulates the procedures of prohibited content restriction. Article 15.3 establishes the procedure for restricting access to the prohibited information and Part 1 of the article sets out the types of prohibited information on the Internet, including “calls for mass riots, extremist activities, participation in mass (public) events held in violation of the established order” and “unreliable socially significant information distributed,” which misleadingly appears as reliable but constitutes “a threat of harm to life and (or ) the health of citizens, property, the threat of mass disruption of public order and (or) public security, or the threat of interfering with the functioning or cessation of the functioning of life support facilities, transport or social infrastructure, credit organizations, energy, industry or communications facilities.” Another type of prohibited information that the article mentions is the information spread by the organizations officially recognized as “undesirable.” 

Article 15.3 obliges the Prosecutor General and the Prosecutor General’s Deputies to identify cases of prohibited content and refer them to Roskomnadzor to issue access restriction requests.

Part 4.1 of Art. 15.3 requires the owner of the information resource that contains prohibited content must delete such content within 24 hours after receiving Roskomnadzor’s request to do so. In case of inaction on the part of the information resource owner, the responsible Internet hosting provider must restrict access to the prohibited content within 24 hours after receiving Roskomnadzor’s request to do so. 

In case of non-compliance with the above-stated federal law procedures on content moderation, Part 2 of Art. 13.41 of the Code of Administrative Offenses of the Russian Federation applies, which imposes an administrative fine for “failure by the owner of the site or the owner of an information resource to delete information or a web page [on the Internet] if the obligation to delete such information or web page is provided for by the legislation of the Russian Federation.” This provision states the fine amount for legal entities can vary from 800 thousand to four million rubles. 

On April 19, 2021, Twitter appealed the decision. 

Decision Overview

The main issue before the Court was whether Twitter was non-compliant with Federal Law No. 149-FZ having not fulfilled Roskomnadzor’s requests to remove access to content in the required time. 

Twitter argued that administrative cases under Part 2 of Art. 13.41 of the Code of Administrative Offenses required an administrative investigation, which had not been done. Twitter also submitted that the evidence presented did not demonstrate that it had been notified of the administrative protocol in accordance with the law, and stressed that the notification of a foreign company had to include the due provision of “international legal assistance in cases of administrative offenses through the Prosecutor General’s Office of the Russian Federation” [p. 3], which had not occurred. Twitter argued that the initial request of the Deputy Prosecutor General indicated the prohibited content had been identified on TikTok, and not Twitter, and so submitted that  Roskomnadzor had no legal grounds for directing its access restriction notices to Twitter. Twitter emphasized that Roskomnadzor was not authorized to assess mass rallies under the procedure in question and argued that the posts in question did not contain any calls for action. Twitter stressed the requirement to remove those posts violated citizens’ right to access information, and that the administrative protocol offered “unacceptable evidence” [p. 3] because the protocol materials were in English, and no certified translation was provided. Twitter argued that it could not be prosecuted in Russia as the company had not committed the offense on the territory of Russia. Citing the Plenum of the Supreme Court of the Russian Federation, Twitter argued that, when the charge is inaction, the case had to take place in accordance with the location of the legal entity: its legal address, 1355 Market Street, Suite 900, San Francisco, CA 94103, United States of America, “which [excluded] the possibility of bringing [Twitter] to administrative responsibility” [p. 3]. 

The Court held that Twitter Inc. was “simultaneously the owner of the information resource and the hosting provider for twitter.com” [p.  6]. To confirm that, the Court also referred to the Whois service on the web site of American Registry for Internet Numbers. Therefore, Roskomnadzor correctly directed its information restriction requests to Twitter Inc and as the owner of the information resource Twitter had failed to delete the information “with calls for participation in mass (public) events held in violation of the established order” in due time upon receiving Roskomnadzor’s notices.

The Court held that Roskomnadzor had sent its notification of an administrative protocol in due manner. 

Responding to Twitter’s argument that the contested content had been published on TikTik and not Twitter, the Court found that Part 9.2 of the Prosecutor General’s Order No. 596, required requests for information access restriction to contain the url-address of the web page or the domain name of the website and that the Deputy Prosecutor General’s had done so. The Court held that the fact that the Deputy Prosecutor General had not mentioned Twitter in the initial request to Roskomnadzor held no legal grounds: the Deputy Prosecutor General had indicated that Roskomnadzor was authorized to carry out access restriction procedures if calls for participation in unauthorized rallies, including those that addressed minors, were identified on other social networks. The Court held that Roskomnadzor’s requests on access restriction conformed to the requirements of Part 1.1 of Art. 15.3 of Federal Law No. 149-FZ, and stressed that the prosecutor’s requests under articles 9.1, 22, 27, 30, and 33 were subject to “unconditional fulfillment in due time” [p. 7].

Addressing Twitter’s reference to the right of citizens to access information, the Court stressed that the content that Roskomnadzor had requested be removed conformed to the descriptions of prohibited information in Part 1 of Art. 15.3 of Federal Law No. 149-FZ and so dismissed Twitter’s argument. The Court added that Twitter had failed to express any disagreement with Roskomnadzor, and it could have appealed Roskomnadzor’s actions yet had not done so. 

The Court held that Twitter’s location outside of Russia did not lead to the termination of the court proceedings, as the general rule is that “the case of an administrative offense is considered at the place of its perpetration” [p. 8]. The Court referred to the Resolution of the Supreme Court’s Plenum (an opinion issued by the Supreme Court to clarify questions that may have arise out of the judicial practice of the lower courts) about the application of “On some issues that arise with the courts when applying the Code of the Russian Federation on Administrative Offenses” that if a case represents the prosecution of inaction, it is considered in accordance with “the location of a legal entity” [p. 8] and as Twitter was not registered on the territory of the Russian Federation, “the place of the offense [was] the location of Roskomnadzor” – the address which “under the provisions of the law […] [referred] to the jurisdiction of Magistrates’ Court №422” [p. 9]. 

The Court held that the evidence presented in the case was sufficient and objective and found Twitter Inc. guilty under Part 2 of Art. 13.41 of the Code of Administrative Offenses of the Russian Federation. The Court imposed an administrative fine.