Content Regulation / Censorship
Loughran v. Century Newspapers Ltd
Closed Contracts Expression
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Magistrates’ Court №422 in the Tagansky District of Moscow, Russia, held that Google LLC repeatedly failed to restrict Internet search access in accordance with the legislation of the Russian Federation. Roskomnadzor – Russia’s Federal Service for Supervision of Communications, Information Technology, and Mass Media – conducted a control procedure, which revealed that the Google search engine did not comply with the Federal State Information System’s requirements to restrict access to the web pages subject to restrictions on the territory of Russia. Roskomnadzor compiled a protocol on an administrative offense. The Court found in favor of Roskomnadzor and that stressed Google’s operations in Russia oblige the company to comply with the Federal State Information System’s requirements. The Court ruled under Part 2.1 of Article 13.40 of the Code of Administrative Offenses of the Russian Federation (“repeated failure to restrict access to the resources that had to be restricted in accordance with the legislation of the Russian Federation”), and sentenced Google to an administrative fine of four million rubles (around USD$52.8 thousand at the time).
Columbia Global Freedom of Expression notes that some of the information contained in this report was derived from secondary sources.
Google LLC is a technology company and the operator of the Google search engine with headquarters in California. An official of Roskomnadzor – Russia’s Federal Service for Supervision of Communications, Information Technology and Mass Media – followed the assignment of Roskomnadzor’s Deputy Head Subbotin and conducted a control procedure under Roskomnadzor’s Order №229. The control procedure aimed at monitoring whether search engine operators terminated access to those web pages that were subject to access restrictions in accordance with the legislation of the Russian Federation.
Having identified Google search engine’s insufficient filtering, which constitutes the company’s non-compliance with the access restriction provisions, Roskomnadzor filed a protocol on an administrative violation against Google.
As reported by Interfax, Roskomnadzor emphasized that the current legislation of the Russian Federation required search engine operators to remove search result access to Internet web pages that contained prohibited information. The requirement obliges search engine operators to comply with the Federal State Information System (FSIS), which lists such Internet web pages.
Federal Law No. 149-FZ “On Information, Information Technologies and Information Protection” regulates the procedures of prohibited content restriction on the territory of the Russian Federation. Art. 15.1 states “the unified automated information system, Unified Register of Domain Names, Page Indexes of Internet Sites and Network Addresses, allows to identify those Internet web pages that contain the content prohibited in the Russian Federation.” Art. 15.1-15.8 regulates access restriction procedures to the web pages listed as prohibited in the register. Part 8 of Art. 15.8 states that search engine operators that distribute advertising on the Internet and aim at the audience on the territory of the Russian Federation Federation must stop providing users with access to those web pages that are prohibited under the legislation of the Russian Federation. The law provides three working days for search engine operators to carry out that access restriction procedure “from the date of obtaining access to the Federal State Information System on those information resources, information and telecommunication networks,” access to which is to be restricted.
In case of non-compliance with the above-stated federal law procedures on search engine filtering, the court resorts to Part 2 of Art. 13.4 of the Code of Administrative Offenses of the Russian Federation, which imposes an administrative fine if a search engine operator fails “to fulfill the obligation to stop” providing its users with access to those web pages, access to which has been restricted “in accordance with the legislation of the Russian Federation on information, information technologies, and information protection.” Part 2.1 of the article imposes a fine for the repeated failure to comply with the above-stated Part 2. Part 2.1 the fine amount for legal entities can vary “from 1.5 million to five million rubles.”
Magistrates’ Court №422 in the Tagansky District of Moscow, Russia, heard the case on January 17, 2022, when it also issued a ruling on the administrative penalty. The Head of Roskomnadzor’s Department for Control and Supervision in the Sphere of Mass Communications for the Central Federal District appeared at the hearing and supported the prosecution of Google.
Magistrates’ Court №422 in the Tagansky District of Moscow ruled, citing the provisions of Federal Law No. 149-FZ and found Google guilty under Part 2.1 of Article 13.40 of the Code of Administrative Offenses – “repeated perpetration of an administrative offense provided for by part 1 or 2 of this article.” According to the official Telegram channel of Moscow general jurisdiction courts, the Court imposed a fine of four million rubles (around USD$52.8 thousand at the time).
Judge Vakhrameev T.S. of Magistrates’ Court №422 in the Tagansky District of Moscow, Russia, delivered the judgment which entered into force on February 25, 2022. The main issue before the Court was whether Google was repeatedly non-compliant with the Federal Law No. 149-FZ by not filtering its search engine results following the list of prohibited content web pages in the Unified Register of Domain Names, Page Indexes of Internet Sites and Network Addresses of FSIS.
Google argued that Roskomnadzor’s Office for the Central Federal District failed to notify Google’s legal representative about when and where the administrative protocol was compiled, had not handed in the protocol’s copy, and that Google’s Chief Executive had not received notification and a copy of the administrative protocol. Google submitted that the statute of limitations period of three months (based on the date when the listed webpages had been added to the prohibited list) had passed. Google maintained that it had not violated the access restriction procedure, as the protocol and the attached screenshots failed to offer any proof for the claim that the Google search engine continued to provide users with access to the prohibited web pages. It argued that google.com was meant for the U.S. users, and there was no evidence provided on what IP address was used to send search requests during Roskomnadzor’s control procedure. Google also submitted that the evidence was defective as there were inconsistencies in the timestamps on screenshots supposedly demonstrating that the webpages remained in Google search results for longer than 24 hours, and the protocol mentioned screenshots of advertisements, which had been accessed through the domain name www.google.com but screenshots indicated they had been accessed through the domain name www.google.ru. Google maintained that it was only obliged to restrict access to separate web pages, not the entire domain where the prohibited information was located.
Google referred to the European Court of Human Rights case of OOO Flavus v. Russia. which had held that “unjustified wholesale blocking of opposition online media outlets” – including the opposition media outlets in the list kasparov.ru (an independent media portal operated by Garry Kasparov, Russian chess grandmaster and an outspoken critic of Vladimir Putin’s regime, who fled Russia in 2013 out of fear of prosecution) and grani.ru – was illegal. The screenshots demonstrated that Roskomnadzor had requested that Google restrict access to kasparov.ru and graniru.org (the new version of grani.ru after it had been blocked in 2014), which would have been illegal in line with the OOO Flavus case.
Roskomandzor’s representative – the Head of Roskomnadzor’s Department for Control and Supervision in the Sphere of Mass Communications for the Central Federal District – stated that the office had sent protocol notifications by mail to the company’s address, which addressed the company, not the Chief Executive of Google, and it had been received. Roskomnadzor maintained that the protocol was based on sufficient evidence, and that there were no inconsistencies in the screenshot evidence but admitted a technical mistake took place in respect of the advertisement screenshots “due to redirection from www.google.com to www.google.ru” [p. 4].
The Court held that there was no obligation to notify Google’s chief executive and that the company had been duly notified. The Court also dismissed Google’s statute of limitations argument, finding that three months had not passed from the date on which Google broke the law, and that, in addition, all the web pages with prohibited content listed in the protocol had been in the FSIS system for more than a day at the moment of Roskomnadzor’s control procedure.
The Court dismissed Google’s argument that the IP addresses used during Roskomnadzor’s control procedure were not geographically linked to the Russian Federation: it rejected the company’s claim that google.com was meant for U.S. users, and stated “the search engine [was] free to use” [p. 5] in the territory in question. The Court held that there was sufficient evidence, and referred to Roskomnadzor’s “clear” [p. 5] indication of when the control procedure had taken place and that all the screenshots had been signed by Roskomnadzor’s executive.
In response to Google’s argument that it was obliged to restrict access to separate web pages, not the entire domains, the Court held the reverse: if the FSIS register contains the domain name of a web page, “the search engine operator is obliged to restrict access to the entire site, that is, to all pages hosted on the same domain, and not just to the specific main page of this site” [p. 5].
In reference to the OOO Flavus case, the Court held that the ECtHR judgment did not contain “a demand for the Russian Federation to resume access to blocked Internet pages” [p. 6].
Addressing Google’s argument that it did not connect to FSIS and thus could not be prosecuted, the Court stressed that Roskomnadzor had notified the company’s Chief Executive Pichai Sundararajan of the necessity to connect Google to FSIS to automatically receive the lists of web sites for access restriction on the search engine.The Court stated Google had not fulfilled Roskomnadzor’s request and continued to provide its search engine users with access to the prohibited web-pages.
The Court determined the evidence presented in the case was sufficient and objective, and found Google LLC guilty under Part 2.1 of Article 13.40 of the Code of Administrative Offenses of the Russian Federation. The Court stated the “aggravating circumstance” [p. 7] in the case was Google’s repeated administrative violation of Part 2 of Art. 13.4 of the Code since the company had been found guilty under the article before.
The Court imposed an administrative fine on Google. As Interfax reports, the fine amount constituted four million rubles (around USD$52.8 thousand at the time).
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court’s decision demonstrates further contraction of expression in Russia, and the government’s continuous attempts to censor the Internet by obligating Internet search engines to filter search results. Some of the web pages listed in the court ruling as prohibited offer information resources critical of Russia and the Russian authorities.
Google has been prosecuted four times previously for its failure to filter Internet search results in Russia: According to Interfax, Google got the initial fine issued by Roskomnadzor for the refusal to connect to FSIS and filter Internet search results on December 11, 2018, in the amount of 500 thousand rubles (around USD$7.6 thousand at the time); As Interfax reports, Roskomnadzor followed with another fine of 700 thousand rubles (around USD$11 100) for insufficient filtering: on July 18, 2019; On December 17, 2020, Magistrates’ Court №422 in the Tagansky District of Moscow, Russia, held that Google LLC committed an administrative offense under Part 2.1 of Article 13.40 of the Code of Administrative Offenses of the Russian Federation, and according to Interfax, the company was sentenced to a fine of 3 million rubles (around USD$41 000 ); and on May 27, 2021, Magistrates’ Court №422 in the Tagansky District of Moscow, found Google LLC guilty of an administrative offense under Part 2.1 of Article 13.40 of the Code of Administrative Offenses, which, as reported by TASS, led to to an administrative fine of 3.5 million rubles (around USD$47 9000).
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