Intermediary Liability, Digital Rights, National Security
Gonzalez v. Google (SCOTUS 2023)
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The Perm Regional Court, Russia upheld an order from the Kirovsky District Court of Perm which had held that two popular search engine operators in Russia had failed to comply with the law on the “right to be forgotten” in failing to remove links to disputed information about a Russian politician. The politician had requested the search engines remove links to information which was false or irrelevant from their search results of his name. The search engines failed to do so, stating that they were not in a position to determine whether the information was false and that the links did not include damaging information about the politician. The Courts held that search engines should be able to determine that information is either irrelevant or false and ordered the search engines to remove the disputed links from search results.
Oleg Cherepanov, a Russian businessman based in Yekaterinburg, a city in the Ural region of Russia requested that three search engine operators – Yandex LLC, Rambler Internet Holding LLC, and Mail.ru LLC – stopped listing links that led to, according to Cherepanov, false, irrelevant, or no longer relevant information about him in their search results. Cherepanov, head of a large Yekaterinburg development company and Chairman of the CJSC “Forum-Group” Board of Directors, used the provisions of the “right to be forgotten” established in Article 10.3 of Federal Law No. 149-FZ “On Information, Information Technologies and Information Protection” (the Information Law).
Yandex, Mail.ru, and Rambler are headquartered in Moscow and are competitors in the Russian market. Yandex is the largest Russian technology corporation (it is the fifth largest worldwide) with a multinational reach and offers a variety of Internet products and services with a focus on Russian-speaking users. Mail.ru – recently renamed VK – is an Internet company which owns and operates the Mail.ru search engine, as well as the three most popular Russian social networks: VK, Odnoklassniki, and Moi Mir. Rambler Internet Holding is an Internet company which operates Rambler, a search engine and web portal.
The links that Cherepanov requested be removed contained information about his arrest under suspicion of committing criminal offenses and his connections with criminal groups, including organized criminal groups. He maintained that the information on his arrest was no longer relevant as the criminal case had been terminated on rehabilitation grounds, and the allegations about his links to criminal groups were false.
Cherepanov sent his requests to Rambler and Yandex twice. In both responses to Cherepanov, Rambler stated that, based on the Rambler-Yandex software module agreement, Yandex provided the search technologies available at Rambler and so Cherepanov would need to direct his application to Yandex. Having received Cherepanov’s application, Yandex removed some of the links listed by him from results from searches that contained his name and/or surname. According to Cherepanov, Yandex refused to remove three links on the grounds that Cherepanov had failed to present evidence that the information in question was irrelevant or false. Yandex argued that a court had to determine whether the information was false. Mail.ru responded by email to Cherapanov’s request, stating that the request did not meet the legal requirements, was incomplete and contained inaccuracies and errors. Mail.ru argued that Cherapanov had failed to provide evidence that the links led to false and irrelevant information about him. In total, Cherepanov had sent three requests to Mail.ru – all of which had been refused.
Cherepanov filed a lawsuit against Yandex and Mail.ru in the Kirovsky District Court of Perm, Russia, seeking an order requiring them to remove the links from results to search requests containing his name and/or surname. He relied on the Information Law, which regulates the exercise of rights to search, receive, transmit, produce, and disseminate information, the use and application of information technologies, as well as information protection. Part 1 of Article 5 titled “Information as an Object of Legal Relations”, states that anyone can freely use information and transfer it from one person to another, “unless federal laws establish restrictions on access to information or other requirements for the procedure of its provision or distribution” [p. 3]. Part 20 of Article 2, titled “Key Concepts Used in This Federal Law”, defines a search engine as “an information system” that performs searches of the Internet for information of a certain content at the request of the user and “provides the user with information about the site page index on the Internet to access the requested information located on Internet sites owned by other persons”. The article provides certain exceptions: “information systems used for the implementation of state and municipal functions, the provision of state and municipal services, as well as for the exercise of other public powers established by federal law.” Part 12 of the article defines an information system operator as “a citizen or legal entity engaged in the operation of an information system, including the processing of information contained in its databases.”
The Information Law also addresses the “right to be forgotten.” Part 1 of Article. 10.3, titled “Responsibilities of a Search Engine Operator”, imposes a responsibility upon search engine operators to stop listing search results on the request of citizens if those search results provide access to information about the applicant that is “distributed in violation of the legislation of the Russian Federation,” “unreliable” and/or “irrelevant, no longer relevant to the applicant due to subsequent events or actions”. An exception to this relates to information about criminally punishable acts, in relation to which the statute of limitations did not expire, and about crimes of individuals, where the criminal record was neither withdrawn nor expunged. Part 2 of Article 10.3 outlines what an applicant’s request to a search engine operator must include: 1) surname, first name, patronymic, passport details, and contact information (telephone and/or fax numbers, e-mail address, postal address); 2) the information about the applicant that the applicant is requesting to remove from search results; 3) reference to the websites, where such information is located; 4) reasons for terminating the issuance of the links in question by the search engine operator; and 5) the applicant’s consent to the processing of their personal data. Part 5 of the article states that the search engine operator has to comply with an applicant’s request within ten business days by removing the disputed links from results of search requests containing the name and/or surname of the applicant. Part 7 of the article states that an applicant has the right to initiate a lawsuit if the search engine has refused to comply with the request which an applicant finds unjustified.
Judge Khuzyakhralov D.O. of the Kirovsky District Court of Perm delivered the decision of the Perm Regional Court. The main issue before the Court was whether Yandex and Mail.ru had failed to comply with the provisions of the “right to be forgotten” under Article. 10.3 of the Information Law by refusing to remove from search results the links that Cherepanov had requested.
Yandex argued that Cherepanov had failed to present grounds for the removal of the disputed links and that he had abused the “right to be forgotten” in his attempts to request removal of a link to the website that contained only “a small fragment, which, in the opinion of the claimant, [was] irrelevant, and which [was] insignificant in relation to other relevant and significant information about the claimant” [p. 2]. Yandex explained its indexing mechanism, emphasizing that it resembled the search mechanisms of other search engine operators represented in Russia. The company stressed that the search system was based on the automated indexing of the publicly available data, which was created and uploaded for the Internet open access by third parties, i.e, website administrators. Yandex emphasized that the website administrators were independent from Yandex in uploading information and determining “the level of accessibility of the information posted by them to Internet users, as well as the possibility or impossibility of indexing information by search engines” [p. 8]. Yandex argued that Internet users accessed information on the indicated websites directly, stressing a user could “access information posted in the public domain on the Internet, regardless of whether such information [had been] indexed by any search engine” [p. 8]. Yandex submitted that it had no relation to third party websites and information posted on them and was not spreading any information through its search engine. Yandex stressed that, as a private organization, which offered “free information search services on the Internet at the request of users”, it strived to provide individuals with their right to search for and receive information and website owners with their right to disseminate information – rights granted by the Constitution of the Russian Federation (Article. 29) and other legislation [p. 8]. Yandex maintained that an applicant had to provide evidence of falsehood and irrelevance of the disputed information sought to be removed from search results “in order to maintain a balance between the rights and legitimate interests of the applicants and the rights of an indefinite number of persons” and submitted that judicial authorities remained the only competent bodies to determine whether disputed information was false [p. 8].
Mail.ru argued that Cherepanov had failed to present sufficient evidence of the alleged falsehood of information on the disputed websites. The company also stressed some of the disputed links had been removed upon Cherepanov’s request and were not displayed in search results by the search engine when the matter was heard. Referring to the functions and capabilities of search engines, Mail.ru presented arguments similar to Yandex’s, and maintained that search engines were not responsible for the content uploaded to the Internet by third parties as search engines provided Internet users with an information search service only. Mail.ru stressed that search engine operators did not author disputed information and were neither “able to objectively correlate the posted information with a specific applicant” nor assess information authored and/or uploaded by third parties, having no corresponding rights or authority to conduct such an assessment [p. 8]. Mail.ru submitted that the courts had the exclusive competence in establishing legally significant facts regarding the verification of information disseminated by third parties on the Internet.
The Court decided to involve a third party into the case – Rambler Internet Holding LLC. According to Rambler’s claim clarifications it had sent a reasoned response to Cherepanov’s request and explained that he had to address Yandex on the matter as Rambler was technically unable to terminate the issuance of the disputed links.
The Court disagreed with the search engines’ argument on their inability to assess the content of information provided on the internet by third parties and considered it “an evasion from the fulfillment of the requirements of the law imposed on the defendants by Part 1 of Art. 10.3 of [the Information Law]” [p. 9]. The Court noted that, in their responses to Cherepanov’s application, neither of the search engines had provided the reasoning they later presented to the Court on the absence of judicial or law enforcement powers on their parts which made them unable to assess the information. Accordingly, the Court held that it would not examine those arguments on the lack of the search engines’ powers.
Citing Part 2 of Article 10.3 of the Information Law, the Court stated that Cherepanov’s requests had complied with the requirements of the law fully. It emphasized that, in addition to all the necessary documents and materials listed by the law, Cherepanov had provided the search engines with the names of articles, corresponding Internet publications, and quotes from the articles, which, in Cherepanov’s opinion, contained false or irrelevant information about him. The Court also found that the requests showed that Cherepanov understood that the removal of links from search results would not lead to removal and inaccessibility of the information in question. Considering Cherepanov’s request with regard to the information about his arrest under suspicion of committing criminal offenses, the Court held that he had provided the companies with “exhaustive explanations” and sufficient evidence of the irrelevance of the information in question, by presenting copies of the decision to initiate a criminal case and the decision to terminate it “due to the absence of elements of crime in his actions” [p. 10]. The Court found that the decision to terminate the criminal case confirmed that Cherepanov’s arrest and subsequent prosecution had been illegal and groundless. The Court refuted the argument of Yandex that one of the articles in question had not contained information about Cherepanov’s arrest and agreed with Cherepanov who had quoted the article in support of his claim. The Court also held that Cherepanov had provided the search engines with sufficient evidence of the falsehood of the information related to his conviction of particularly grave crimes, as he submitted “a certificate of the […] absence of a criminal record and (or) the fact of criminal prosecution or the termination of criminal prosecution issued by the authorized body” [p. 11]. The Court also stated that the evidence was supported by “exhaustive explanations” [p. 11].
In respect of the information that Cherepanov had been involved in organized crime, the Court held that Cherepanov had sufficiently demonstrated the information in question was false by providing the companies with “a certificate of the […] absence of a criminal record and (or) the fact of criminal prosecution or the termination of criminal prosecution issued by the authorized body” [p. 12]. The Court also noted Cherepanov had submitted sufficient explanations, and had emphasized that any involvement with organized crime groups would have to be prosecuted under the Criminal Code of the Russian Federation. The Court accepted the statement from Resolution No. 12 dated June 10, 2010 “On Judicial Practice of Consideration of Criminal Cases on the Organization of a Crime Group (Criminal Organization) or Participation in It” of the Supreme Court’s Plenum, which stated that, “due to the high public danger” any involvement in an organized crime group (including an intent or attempt to create it) was punishable by the Criminal Code of the Russian Federation [p. 12]. The Court also referred to Article 49 of the Constitution, stressing that “anyone accused of a crime is presumed innocent until proven guilty” [p. 12].
The Court held that there had been no grounds for the search engines to reject Cherepanov’s requests as the companies had had the capability of fulfilling the obligation imposed upon them by Part 1 of Article 10.3 of the Information Law by drawing “independent conclusions about the irrelevance of the information contained”] in the disputed links [p. 11.]
The Court referred to Article 23 of the Constitution on everyone’s right to privacy, personal and family secrets, as well as to the protection of one’s honor and good name. The Court also referred to Article 8 of the European Convention on Human Rights (ECHR), which had been ratified by the Russian Federation in 1998. Citing Resolution No. 5 of the Supreme Court’s Plenum and Part 1 of Article 17 of the Constitution, the Court stated that the Russian Federation “recognized and guaranteed the rights and freedoms of man and citizen in accordance with the generally recognized principles and norms of the international law” [p. 14]. Citing Part 4 of Article 15 of the Constitution and Part 1 of Article 5 of Federal Law No. 101-FZ “On International Treaties of the Russian Federation,” the Court stressed that international treaties ratified by the Russian Federation were integral to the country’s legal system and that judicial misapplication of “the generally recognized principles and norms of the international law and international treaties of the Russian Federation may be the basis for the cancellation or amendment of a judicial act” [p. 14].
The Court noted that the ECHR provided for the compulsory jurisdiction of the European Court of Human Rights (ECtHR). The Court referred to Resolution No. 21 “On the Application by Courts of General Jurisdiction of the Convention for the Protection of Human Rights and Fundamental Freedoms from November 4, 1950 and its Protocols” of the Supreme Court’s Plenum and corresponding Resolutions No. 8 and 5. The Court emphasized that the substance of the rights and freedoms stated in the legislation of the Russian Federation had to be determined with consideration of the substance of similar rights and freedoms disclosed by the ECtHR in its application of the ECHR and its Protocols. The Court stated that the courts considered the ECtHR’s legal positions in relation to other State Parties to the Convention, if the circumstances of the case under consideration resembled the circumstances that the ECtHR had analyzed and ruled upon. Thus, the Court determined it could refer to what it stated was a ruling of the ECtHR, which had been based on the circumstances similar to the case in question, and cited excerpts of the judgment dated May 13, 2014 in Google Spain SL v. Agencia Española de Protección de Datos. The case was actually decided by the Court of Justice of the European Union, not the ECtHR.
The Court held that the evidence confirmed that the information in the disputed links was either irrelevant or false, and so, taking into account the ruling in Case No. C-131/12, the Court held that Cherepanov’s claims fully complied with Part 1 of the Information Law and Articles 7 and 8 of the ECHR.
The Court disagreed with the definitions of such terms as “falsehood,” “irrelevance,” and “loss of significance to the claimant” presented by the search engines, as their definitions were “expansive and [did] not comply, among other things, with the legal positions set forth in the above Rulings of the Supreme Court’s Plenum […], as well as in the decision of the European Court of May 13, 2014 in case No. C-131/12” [p. 19].
The Court also rejected the search engines’ references to “predominantly negative judicial practice in this category of disputes” [p. 19] in Russia, stating that the cases the search engines mentioned had “no prejudicial significance for the consideration of this dispute” [p. 19].
Referring to Mail.ru’s claim that it had removed some of the disputed links before the case was taken to court and Yandex’s argument on the possibility that after their removal links could emerge in search results again due to an automated process, the Court stated that it ruled based on “the confirmed fact of violation of the claimant’s right at the time of applying to the court” [p. 20]. And in respect of Yandex’s argument on the abuse of rights, the Court cited part 1 of Article 10 of the Civil Code of the Russian Federation, which prohibits the exercise of rights with an intention to cause harm to an individual, circumvent the law or any other abuse of one’s right. The Court stated that “the main sign of the presence of an abuse of the right is the intention to harm another person” and that Yandex had failed to present evidence regarding Cherepanov’s actions being intended to the detriment of other individuals [p. 20]. The Court held that Cherepanov was realizing his right to judicial protection.
Accordingly, the Court ruled in favor of Cherepanov, ordering Mail.ru and Yandex to remove the disputed links from search results in accordance with Article. 10.3 of the Information Law.
On appeal by Mail.ru, the Judicial Collegium for Civil Cases of the Perm Regional Court consisting of presiding Khasanova V.S. and judges Babinova H.A. and Lapukhina E.A. delivered the Court’s decision.
Mail.ru argued that the First Instance Court had incorrectly applied the international law norms. Referring to the ruling of the Court of Justice of the European Union in Google Spain SL v. Agencia Española de Protección de Datos, upon which the First Instance Court based its decision, the company argued that the European Court’s ruling was “not an integral part of the legal system of the Russian Federation, [and did] not apply on its territory, since the Russian Federation [was] not a member state of the European Union” [p. 2]. Mail.ru submitted that the case law system was absent in Russia, thus, the decision could not serve as a precedent and “was adopted in a case with completely different circumstances” [p. 2]. The company noted that the lower Court had refused to take into account the judicial practice of Russian courts regarding similar cases, and thus had violated “the principle of uniformity of interpretation and application of the norms of Russian law” [p. 2]. The company reiterated the other objections it had presented to the First Instance Court earlier.
The Court held that the First Instance Court had “reasonably taken into account the legal position of the European Court set out in the decision of the European Court […] in Case No. C-131/12” [p. 8]. The Court dismissed Mail.ru’s argument with regard to the First Instance Court failing to consider the judicial practice in Russia, stating it had “no legal significance since the circumstances established by judicial acts in a particular case [did] not have prejudicial significance for the consideration of this dispute” [p. 8]. As for the rest of the reasoning, the Appellate Court sided with the First Instance Court consistently.
Accordingly, the Appellate Court upheld the First Instance Court’s decision.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court’s decision contracts expression in Russia. The application of the “right to be forgotten” helps politicians and businessmen hide publicly significant information about them, as the Russian courts appear to be lenient with regard to those who hold power – in business or politics – failing to properly attend to the aspect of public interest value. On August 17, 2021, the Appellate Court – the Chelyabinsk Regional Court – ruled under the provision of the law on the “right to be forgotten” in favor of Valery Gartung, a politician who has served as the Member of the State Duma – the lower house of the Federal Assembly of Russia – since 1997. The Court ordered Google to stop listing links about Gartung’s alleged corruption in its search results.
Apart from the Mail.ru and Yandex search engine operators, Cherepanov had also initiated a lawsuit to compel Google to remove links to articles about his alleged criminal connections. On November 13, 2018, the Kirovsky District Court of Perm found in favor of Cherepanov based on “the right to be forgotten” and ordered Google to remove the disputed links from search results. The Appellate Court – the Perm Regional Court – upheld the First Instance Court’s decision on April 1, 2019, noting, however, that the Lower Court’s reference to the CJEU’s decision in Case No. C-131/12, Google Spain SL v. Agencia Española de Protección de Datos, had “no legal significance” [p. 12].
One regional review of the legal practice in application of “the right to be forgotten” titled ” ‘The Right To Be Forgotten’ Is Being Forgotten” argued that in the first year and a half after the law had gone into effect few citizens resorted to the provision through courts in the Ural federal region. A more recent review of the law claimed the “right to be forgotten” was not working in Russia and, drawing from examples of several politicians who had turned to the provision to remove controversial information about them, argued the politicians had received more publicity and attention to the information they had intended to conceal. As MBK Media reports, politicians and members of the State Duma – the lower house of the Federal Assembly of Russia, as well as businessmen have been resorting to the “right to be forgotten”, including through the judicial process.
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