Content Regulation / Censorship, Political Expression
Zhang v. Baidu.com, Inc.
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The Tagansky District Court of Moscow upheld a Magistrates Court order which had held that Meta Platforms Inc. had repeatedly failed to remove access to information that they had been instructed to remove under legislation of the Russian Federation. Roskomnadzor – Russia’s Federal Service for Supervision of Communications, Information Technology and Mass Media – sent notices on information access restriction to Meta which concerned information prohibited in Russia – content considered harmful to minors and inaccurate socially significant information – in Facebook and Instagram posts. Roskomnadzor compiled a protocol on an administrative offense based on Meta’s repeated failure to comply with its requests. The Court ruled under Part 5 of Art. 13.41 of the Code of Administrative Offenses of the Russian Federation (“repeated perpetration of an administrative offense provided for by parts 1 or 2 of the article”), and imposed a fine of more than 1.9 billion rubles (around USD$27 million at the time).
Meta Platforms Inc. (formerly known as Facebook Inc.) is a technology company and parent organization of Facebook, Instagram, and WhatsApp with headquarters in California. Following the requests of several Russian district courts, Roskomnadzor – Russia’s Federal Service for Supervision of Communications, Information Technology and Mass Media – sent notices to Meta requiring that Meta prevent access to certain pieces of information within 24 hours. Meta failed to act in compliance with the notices and did not remove access to the information.
Roskomnadzor filed a protocol on a repeated administrative violation against Meta before the Magistrates Court №422 in the Tagansky District of Moscow. Roskomnadzor stressed the systemic nature of Meta’s non-compliance with Russia’s regulations, as the company had already been prosecuted for failing to remove the content subject to access restriction in accordance with the legislation of the Russian Federation: The same Magistrates Court had previously ruled on ten cases against Facebook Inc. under Part 2 of Art. 13.41 of the Code of Administrative Offenses of the Russian Federation. Interfax reported that Roksomnadzor has 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 December 24, 2021, the Magistrates Court issued a ruling on the administrative penalty.
The Magistrates Court cited the provisions of Federal Law No. 149-FZ “On Information, Information Technologies and Information Protection” and found Meta guilty of an administrative offense under Part 5 of Art. 13.41 of the Code of Administrative Offenses of the Russian Federation – “repeated perpetration of an administrative offense provided for by parts 1 or 2 of the article.” The Court imposed a fine based on 5 percent of the company’s revenue in Russia, which constituted 1,990,984,950 rubles and 05 kopecks (more than $27 million at the time).
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. Part 1 of Art. 15.1 of that law states: “the unified automated information system, Unified Register of Domain Names, Page Indexes of Internet Sites and Network Addresses, allows to identify those Internet websites that contain the content prohibited in the Russian Federation ” [p. 8]. Part 5 of Art. 15.1 states that the grounds for including content into the register can be based on the decisions of federal executive bodies regarding certain types of information spread (item “ж” lists content “aimed at inducing or otherwise involving minors in committing unlawful acts that pose a threat to their life and (or) health or to the life and (or) health of other persons”), and Part 5 of that article also mentions that the grounds for including content into the register can be based on court decisions. Part 7 and Part 8 of Art. 15.1 elucidate the due content restriction procedure once the content is added to the register: the owner of the website is obliged to delete prohibited content immediately and; if the owner of the website fails to comply, the obligation to restrict access to the prohibited content falls on the Internet hosting provider. Part 1 of Art. 15.3 establishes the restriction procedure with regard to “unreliable socially significant information disseminated under the guise of reliable messages that creates a threat of harm to the life and (or) health of citizens, property, a threat of mass violation of public order and (or) public safety, or a threat to interfere with the functioning or stop the functioning of life support facilities, transport or social infrastructure, credit institutions, energy, industry or communications facilities” [p. 8]. Once such content is identified, the Prosecutor General of the Russian Federation refers that to the responsible federal executive agency with a request to enforce content access restriction. Part 4.1 of that article obliges the responsible Internet hosting provider to follow the federal agency’s content access restriction request within 24 hours.
In case of non-compliance with these procedures on content moderation, the Court resorts to Part 2 of Art. 13.41 of the Code of Administrative Offenses of the Russian Federation, 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 the web page is provided for by the legislation of the Russian Federation.” Part 5 of Art. 13.41 of the Code of Administrative Offenses imposes a fine for the repeated failure to comply with the above-stated Part 2, and of the article. Part 5 states the fine amount for legal entities can vary from “one-twentieth to one-tenth” of the legal entity’s annual revenue “received from the sale of all goods (works, services)” and cannot be less than 4 million rubles.
On January 17, 2022, Meta appealed the decision to the Tagansky District Court of Moscow.
The main issue before the Court was whether Meta was repeatedly non-compliant with Federal Law No. 149-FZ having not fulfilled Roskomnadzor’s requests on content access restriction in time.
Meta argued that the administrative violation in question was not a repeated one, as the notices on the information restriction were sent before the company could have been subjected to prosecution for them. The company argued that the process was unconstitutional, and stressed that imposition of a revenue-based fine would act in contradiction with the Constitution of the Russian Federation, as such punishment would be unfair and disproportionate to the damage done and would violate the right to freedom of expression, protected by Article 28 of Russia’s Constitution. Meta also alluded to the lack of clarity in the revenue-based fine imposition norm in Part 5 of Art. 13.41 of the Code of Administrative Offenses, which would allow for an arbitrary application of the law. Meta emphasized a fine amount calculation based on the company’s global revenue would be excessive and detrimental to its activity both on the territory of Russia and abroad, and that such a penalty would constitute discrimination against foreign companies, alluding to the disparity in the history of imposed fine amounts between the Russian IT companies and foreign ones. Meta argued that six out of nine Roskomnadzor’s notices were sent before Part 5 of Art. 13.41 of the Code of Administrative Offenses took effect and so they concerned the company’s administrative responsibility according to Part 1 of Art. 19.5 of the Code of Administrative Offenses, where the limitation period constitutes three months. Meta submitted that as that limitation period had expired it could not be prosecuted for its failure to comply with six out of nine notices. Meta argued that Roskomnadzor and the judge of the Magistrates’ Court could not consider the case, as the incriminated administrative offense took place on the territory of a foreign country, and the Code of Administrative Offenses did not apply extraterritorially. Meta alluded to Roskomnadzor’s failure to conduct an administrative investigation that Art. 28.7 of the Code of Administrative Offenses of the Russian Federation obliged it to do.
Roskomnadzor’s representative – the Consultant of the Mass Communications Control and Supervision Department who authored the administrative protocol against Meta – clarified that she was not aware of whether the content under consideration was removed by Meta. Roskomnadzor stressed Meta’s repeated violation of the Administrative Code as the company had been prosecuted under Part 2 of Art. 13.41 of the Code of Administrative Offenses before and emphasized the fact that “the notices on content access restriction were sent before the primary decisions of the judge entered into force” as indicative of the company’s “systematic non-compliance with the requirements of the regulator” [p. 5]. Roskomnadzor stated that the current case did not require an administrative investigation, and reported that Meta received a request for information on the company’s income, to which Meta responded it did not have any income at the address the request referred to.
Referring to Federal Law No. 149-FZ provisions on the due process of prohibited content access restriction, the Court determined that the obligation to restrict the listed prohibited content resources fell on Meta since the company was “the owner of the information resources “Instagram,” “Facebook” and simultaneously the provider of hosting sites www.instagram.com and https://www.facebook.com” [p. 9].
The Court cited ten earlier rulings of the Magistrates Court (№422) in the Tagansky District of Moscow when Facebook Inc was found guilty under Part 2 of Art. 13.41 of the Code of Administrative Offenses of the Russian Federation. The Court cited both the Commercial Register of the State of Delaware, USA and the information resource of the Securities Commission to highlight that Facebook Inc. was renamed Meta Platforms Inc and so there was repeated violation by Meta.
The Court rejected Meta’s argument that the law could not be applied retroactively.
The Court held that since Meta is not registered on the territory of the Russian Federation, “the place of the offense is the location of Roskomnadzor” – the address which “under the provisions of the law […] refers to the jurisdiction of Magistrates’ Court №422” [p. 10], and so rejected Meta’s extraterritorial argument..
In response to Meta’s argument that Part 5 of Art. 13.41 of the Code of Administrative Offenses infringes the provisions of the Constitution of the Russian Federation, the Court did not elaborate on its reasoning and mentioned only, “The judge [did] not see any inconsistencies in Part 5 Art. 13.41 of the Administrative Code of the Russian Federation in relation to the Constitution of the Russian Federation” [p. 11].
Addressing Meta’s discrimination claims, the Court stated the company’s revenue depended on the number of users on its Internet platforms. Emphasizing the numbers – more than 1 billion Instagram users and more than 2 billion Facebook users – the Court held that the public danger that stemmed from the prohibited content on Instagram and Facebook was “certainly higher than the placement of such information on a site with a smaller audience, and, accordingly, a smaller income” [p. 11].
The Court determined the evidence presented in the case was sufficient and objective and found Meta Platforms Inc. guilty under Part 5 of Art. 13.41 of the Code of Administrative Offenses.
Russia’s Federal Taxation Service provided the judge with the overall cost of services in the cases of three Meta subsidiary companies that the judge had requested earlier. The total revenue calculation was presented in the following way: “50 980 201 + 217 575 298 + 39 551 143 502” [p. 13]. The Court imposed a fine in the amount of 5 percent)of the company’s annual revenue. The fine amount constituted 1 990 984 950 rubles and 05 kopecks.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment contributes to a contraction of expression in Russia and demonstrates the government’s continuous attempts to censor social media platforms. Some of those Facebook and Instagram posts that the judgment listed as prohibited content were critical of Russia and the Russian authorities. One Facebook post listed in the court ruling criticized Russia’s prison system for the lack of healthcare action amid the pandemic and called for urgent changes. The author of that very post is Vladimir Osechkin, a Russian human rights activist and founder of Gulagu.Net, a project with the mission to resist corruption and torture in Russia.
Meta – earlier as Facebook – had previously been prosecuted in Russia for its failure to comply with Roskomnadzor’s requests on content access restriction. The legal basis for prosecution in those cases was the same as in the present case: Art. 13.41 of the Code of Administrative Offenses the Russian Federation on “violation of the procedure for restricting access to information, information resources, access to which is subject to restriction in accordance with the legislation of the Russian Federation.” The earlier fines imposed upon the company ranged from 6 million to 26 million rubles, but the fine imposed in the present case, however, is unprecedented for the company – almost 2 billion rubles (more than USD$27 million at the time).
On the same day as this case (December 24, 2021), another case was heard in parallel and Magistrates’ Court №422 in the Tagansky District of Moscow, Russia, found Google guilty under Part 5 of Art. 13.41 of the Code of Administrative Offenses of the Russian Federation, holding that Google repeatedly failed to remove access to those Internet information resources that had to be removed in accordance with the legislation of the Russian Federation. Google’s case followed the patterns of this case against Meta: Roskomnadzor’s requests concerned information considered harmful to minors and inaccurate socially significant information on YouTube; Roskomnadzor compiled a protocol on an administrative offense based on Google’s failure to comply with its requests; and the Court imposed a revenue-based fine of more than 7.2 billion rubles (around USD$98.4 million at the time).
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