Content Regulation / Censorship, Commercial Speech
Tracy Rifle and Pistol v. Harris
Closed Contracts Expression
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The Miroviy Court of the Pushkin Judicial District (Miroviy Court) fined an online publisher for failing to place an age disclaimer on a video shared through its platform, despite the platform’s logo including a 16+ designation. The video depicted a fictional member of the Russian parliament partying with prostitutes, misusing public funds, and using profanities. In its decision, the Miroviy Court relied on various employment and administrative laws to clarify that the definition of online “media production” includes the acts of creating and designing a website, as well as the dissemination of online content, thus expanding the potential liability of online publishers.
On August 26, 2016, a user uploaded a sketch comedy video entitled “We need to go on a vacation! (Lavrentiy Avsugovich uses public money to act outrageously at a villa)” to a website called “7×7”. The sketch was produced by an online sketch comedy group, and was one in a series of videos about a fictional corrupt member of the Russian parliament named Lavrentiy Avsugovich. In the video, Lavrentiy Avsugovich is depicted partying with prostitutes at a luxurious villa using public funds. The characters in the video were also shown using obscenities.
The video was posted to “7×7”, a website that both creates its own content and hosts news, opinions, blogs, and videos created by its users. “7×7” does not edit the content that is posted by its users. The logo of “7×7”, which is present on all of its pages, includes a “16+” sign.
Russia’s state-run media watchdog, Roskomnadzor, filed an administrative complaint against “7×7” to the Miroviy Court of the Pushkin Judicial District. The complaint alleged that the website violated the Federal Law No. 436 “On Protection of Children from information that harms their health and development” which requires certain content to include age warnings. The complaint was made on the basis that the “7×7” video did not contain such a warning.
“7×7” did not admit any unlawful activity.
The Miroviy Court of the Pushkin Judicial District (Miroviy Court) established the responsibility of “7×7” for failing to place an age warning on a video that it did not produce and did not upload to its website. In reaching this finding, the Miroviy Court began by adopting the definitions of the terms “media production” and “media dissemination” under the Federal Law No. 2124-1 “On mass media.” Under the Federal Law “On mass media”, the definition of “media production” includes a single update of an online publication, and “media dissemination” is defined as the sale, subscription, delivery or circulation of any mass “media production”.
The Miroviy Court then elaborated further on what constitutes “media production” for online publications. It did so by reviewing the Ministry of Labor Order No. 332 “Approval of the technical standards for Specialists for the development of production for online publications and information agencies” from May 21, 2004. This order stated that “media production” online includes the “implementation of artistic and technical designs”, and preparation and control over publications. The order clarified that the “implementation of artistic and technical designs” may include activities such as website layout development, the development of a website’s look and aesthetic, development and approval of every publication on the basis of a design, proposals for assignments for full-time reporters, the selection of images for publication, and making decisions on updating various elements of a website design. Therefore, the Miroviy Court concluded that development and dissemination of mass “media production” may include activities related to creating publications and posting them online.
The Miroviy Court then defined what constitutes an editorial body of a publication. It relied on Article 2( 9) of the Federal Law “On mass media,” which defined an “editorial body of mass media” as a person, a group of persons, or an entity that develops and disseminates information. Moreover, the Miroviy Court indicated that Article 56 of the same law makes founders, editorial bodies, publishers, distributors, government agencies, organizations, entities, businesses, public organizations, journalists, and authors of disseminated materials legally responsible for the content disseminated through mass media.
The Miroviy Court then specified that the Federal Law No. 436-FZ “On the protection of children from information that causes harm to their health and development” mandates creators or distributors of information to review and classify this information by its age appropriateness. After clarifying the applicable law, the Court concluded that “7×7” violated the Federal Law No. 436-FZ “On the protection of children from information that causes harm to their health and development” because it permitted the dissemination of information which was banned among children without an age disclaimer.
The Miroviy Court then looked to the charter of “7×7”. The charter named “7×7” LLC to be the website’s editorial body. It also specified that the editorial body enjoyed full rights and responsibilities for the website in accordance with the laws of the Russian Federation.
After considering the relevant law and all of the circumstances of the case, the Court ruled that “7×7” violated the law on “the protection of children” and fined it RUB 20,000 (approximately $337).
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case contracts free expression by penalising an online platform for sharing a video that was deemed unsuitable for children and that did not contain an age disclaimer, despite the fact that the website’s logo included an age disclaimer. The case also has wider implications for how the Russian courts may approach intermediary liability.
Firstly, the Federal Law “On the protection of children from information that causes harm to their health and development” seemed to place an obligation on website hosts to monitor third-party content to determine whether some content required an age disclaimer. This is despite the fact that the Committee of Ministers for the Council of Europe has stated that “[m]ember states should not impose on service providers a general obligation to monitor content on the Internet to which they give access, that they transmit or store, nor that of actively seeking facts or circumstances indicating illegal activity.”
Secondly, there was no need for the website owner to be notified that the relevant content was unsuitable for children and that it required an age disclaimer before it was liable to a fine for failing to place such a disclaimer on the content. A recent joint declaration of the international special mandates, including the Special Rapporteurs of the UN, AU and OAS, emphasized that “intermediaries should never be liable for any third party content relating to those services unless they specifically intervene in that content or refuse to obey an order adopted in accordance with due process guarantees by an independent, impartial, authoritative oversight body (such as a court)”.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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