Content Regulation / Censorship, Gender Expression, Indecency / Obscenity
The State v. Momar Sowe and Alieu Sarr
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The Russian Supreme Court held that the termination of an online news portal for publishing videos containing obscene language was a disproportionate restriction on the right to freedom of expression. Russia’s state-run media regulator, Roskomnadzor, applied to the Moscow City Court for an order terminating the operations of the news portal Rosbalt.ru following two warnings from Roskomnadzor about the videos. The Moscow City Court granted the order, and this decision was appealed to the Supreme Court. In its judgment, the Supreme Court referred to constitutional law and the European Convention on Human Rights to conclude that the Moscow City Court failed to assess whether an order terminating Rosbalt.ru’s operations was a proportionate restriction on the right to freedom of expression in these circumstances.
Rosbalt.ru is a popular online news portal in Russia that was established in 2004. On July 12 and 25, 2013, Russia’s state-run media regulator, Roskomnadzor, sent separate written warnings to Rosbalt.ru because it published two YouTube videos entitled “Girls Sang a New Song” and “The Horseman of the Krasnodar”. In its warnings, Roskomnadzor alleged that the videos contained “obscene language” in violation of Part 1, Article 4 of the Russian Federal Law on Mass Media. This provision prohibits the use of media outlets for the commission of criminal offences, for disclosing State or other protected categories of secret information, for disseminating material containing public calls to engage in terrorist activity or calls publicly justifying terrorism, or other extremist material or information containing propaganda of the cult of violence and cruelty. Rosbalt.ru promptly removed the videos in response to these warnings.
On October 21, 2013, Roskomnadzor requested that the Moscow City Court order the termination of Rosbalt.ru’s operations in Russia pursuant to Part 1, Article 16 of the Russian Federal Law on Mass Media. This provision authorizes Russian courts to terminate or suspend the activity of a media outlet where the following three requirements are met: (i) there is a request from Roskomnadzor, (ii) the request is on account of repeated violations of the requirements set out in Article 4 of Russian Federal Law on Mass Media over a period of twelve months, and (iii) Roskomnadzor has issued a warning to the founder and/or the editorial board (editor-in-chief) in writing.
On October 31, 2013, the Moscow City Court granted Roskomnadzor’s request, finding that there had been repeated violations of Part 1, Article 4 of Russian Federal Law on Mass Media over a period of twelve months, and Roskomnadzor had complied with the requirements under Part 1, Article 16 of the Russian Federal Law on Mass Media. This decision was appealed to the Supreme Court.
The Supreme Court (Court) allowed the appeal, finding that there had been improper termination of Rosbalt.ru’s operations. The Court began by setting out the right to freedom of expression under Article 29 of the Russian Constitution, highlighting that it encompassed freedom of the media and that it prohibited censorship. The Court then outlined the right to freedom of expression, and its justifiable limitations, under Article 10 of the European Convention on Human Rights (Convention). The Court noted that the Convention right included the freedom to receive and impart information and ideas without any interference by public authorities and regardless of frontiers. The Court also recognized that the Convention permitted the right to be subject to certain limitations where they are prescribed by law and necessary in a democratic society. According to the Court, Part 1, Article 4 of the Russian Federation Law on Mass Media amounted to a limitation on the right to freedom of expression.
The Court then considered its precedent, and reiterated that the right to freedom of expression could only be limited for the purpose of protecting constitutional values. Furthermore, such limitations must abide by the rule of law and conform to the principles of reasonableness, proportionality, and necessity. The Court also reasoned that the right should not be limited solely on the grounds that the expression does not align with generally accepted ideas, is contrary to well-established traditional views, or is in conflict with moral, ethical, or religious preferences. Additionally, the Court noted that limitations should not distort or undermine the right to freedom of expression itself.
The Court held that the Moscow City Court, by prohibiting Rosbalt.ru’s operations, failed to assess whether the termination of their operations was a proportionate response to the actions committed. The Court held that the Moscow City Court should have ascertained the nature of the offence, the circumstances of its commission, and the severity of the harm caused in reaching its decision. In this case, the Court noted that obscene language was a relatively insignificant offence. The Court also noted that the website had removed the two offending videos immediately after receiving warnings from Roskomnadzor. Furthermore, the Court stressed that in its many years of operations as one of the largest online news portals in the country, Rosbalt.ru had not received any complaints from the Russian law enforcement authorities.
The Court went on to state that it was not sufficient to consider the content of the videos on their own, but courts should also take into account the context in which the content is published. In the present case, the Court highlighted that by the headlines to the articles containing the videos made it clear that those videos were shared for important socio-political purposes, rather than to intentionally offend online users.
In light of this, the Court held that the termination of the Robalt.ru’s operations was a disproportionate restriction on their right to freedom of expression and cancelled the order of the Moscow City Court.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands freedom of expression because it recognizes that the shutting down of a news website for publishing videos containing “obscene language” is a disproportionate restriction on the right to freedom of expression. The Russian Supreme Court’s decision is particularly important because it highlights the importance of a contextual review when considering the proportionality of a restriction, and it provided an important check on the state-run media regulator’s attempts to stifle a vital news source.
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