Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Mixed Outcome
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
The Russian Constitutional Court refused to consider the application brought by a Russian lawyer seeking to have various provisions of Russia’s Information, Information Technologies and Information Protection law declared unconstitutional. The lawyer had been convicted of a crime and later requested that the search engine remove results attached to articles about his conviction. The lower courts ruled against the lawyer in his right to be forgotten application, holding that the information remained relevant and that as all records of a conviction had to be retained for 15 years, information of that crime should be accessible for the time period. The lawyer then challenged the constitutionality of the provisions which permitted search engines to refuse requests for removal of search results. The Constitutional Court balanced the rights to privacy and to access to information, and found that although personal data protection rights have a special status that does not mean they cannot be restricted. The Court held that the right to access information outweighed the personal right to be forgotten as the information was of public relevance and not related to the lawyer’s private life.
A Russian lawyer, Citizen K. had been convicted of a crime. He later filed a lawsuit against Google LLC and Google Inc., requesting the search engine operator to remove certain links from its search results which linked to information about that crime. The First Instance Court ruled against Citizen K. and the Appellate Court upheld the order. The Courts held that the information had not yet lost its relevance, and that an old conviction led to both criminal law and general legal consequences, stressing that as criminal cases of serious crimes had to be stored for 15 years, the relevant information about that crime also had to remain available for the same period of time. The Courts emphasized the fact that Citizen K. had committed the crime “in connection with the professional activities of a lawyer”, and stated that the profession bore public significance [p. 2]. The Courts acknowledged that Citizen K. had regained the status of a lawyer, yet the website of the bar association, where he had become a member, failed to mention that Citizen K. had been criminally prosecuted as a fact of his biography. The Cassation Instance Courts, including the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, refused to consider K.’s complaint.
Citizen K. then filed a complaint regarding the provisions of the Federal Law No. 149-FZ “On Information, Information Technologies and Information Protection” dated July 27, 2006 (the Information Law) which allowed the search engine operator to deny K.’s request on the removal of search results, despite the “right to be forgotten” addressed in the same law. The Information Law regulates the spread of information in the Russian Federation. Part 1 of Art. 3 of the law titled “Principles of Legal Regulation of Relations in the Field of Information, Information Technology, and Information Protection” outlines “the freedom to seek, receive, transmit, produce and distribute information in any lawful manner” as the law’s underlying principle. Part 1 of Art. 8 of the law titled “Right to Access Information” states that individuals and legal entities “have the right to search for and receive any information in any form and from any source” under the condition of compliance with the provisions of federal laws.
The Information Law also addresses the “right to be forgotten.” Art. 10.3 of the law titled “Responsibilities of a Search Engine Operator” imposes a responsibility on search engine operators to stop issuance of search results at requests of citizens, if the search results provide access to the 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.”
In his application to the Constitutional Court, Citizen K. challenged the constitutionality of Part 1 of Art. 3 and Part 1 of Art. 8 of the Information Law.
The main issue before the Court was whether the provisions of the Information Law which allowed the search engine operator to deny Citizen K.’s “right to be forgotten” infringed the Constitution of the Russian Federation, even in circumstances where the information in question was “unreliable, irrelevant, and no longer relevant to the applicant due to subsequent events or actions”, and so would have met the conditions for search results removal under Art. 10.3 of the law
Citizen K. argued that the contested law provisions contradicted various provisions in the Constitution: Parts 1 and 3 of Article 17 (on the guarantee of one’s rights and freedoms in accordance with International Law and the Constitution and on the exercise of one’s rights and freedoms in non-violation of the rights and freedoms of others); Article 18 (on the direct operation of one’s rights and freedoms and their role in determining “the essence, meaning, and implementation of laws, the activities of the legislative and executive authorities”); Parts 1 and 2 of Article 19 (on everyone’s equality before the law and court and on the state guarantee of everyone’s equality “regardless of sex, race, nationality, language, origin, property and official status, place of residence, religion, convictions, membership of public associations, and also of other circumstances”); Part 1 of Article 23 (on everyone’s right to “the inviolability of private life, personal and family secrets, the protection of honor and good name”); Part 1 of Article 24 (on the prohibition of “the collection, keeping, use and dissemination of information about the private life of a person […] without his or her consent”); and Parts 2 and 3 of Article 55 (on the prohibition of laws that cancel or derogate human rights and freedoms and on the extent of limitations to rights and freedoms that the federal law may impose).
The Court referred to the “right to freely look for, receive, transmit, produce, and distribute information by any legal way”, and stressed that, in accordance with Part 3 of Article 17 of the Constitution (on the guarantee and enjoyment of everyone’s rights), that right “shall not […] violate the rights and freedoms of others” and could only be implemented in a lawful manner [p. 2]. In this respect, the Court referred to one of its earlier rulings, Resolution N 3-P of March 31, 2011 “On the Case of Checking the Constitutionality of Part Three of Article 138 of the Criminal Code of the Russian Federation in Connection with Complaints from Citizens S.V. Kaporin, I.V. Korshun and Others.” In that ruling, the Court had emphasized that, if the rights to freedom of information and free use of “one’s abilities and property for entrepreneurial and other economic activities not prohibited by law” (Part 1 of Art. 34 of the Constitution) interfere with Articles 23, 24 (Part 1) and 25 of the Constitution, the former limits the latter three rights of an individual. Accordingly, the Court had held that everyone’s right to privacy (Art. 23), the prohibition of non-consensual collection, storage, dissemination of one’s private information (Part 1 of Art. 24), and the inviolability of one’s home (Art. 25) remain “under special, enhanced protection of the Constitution of the Russian Federation”, and their restriction requires corresponding federal law provisions and/or a court decision “issued in accordance with such federal law” [p.2-3].
The Court stressed that the special nature of the individual rights under Article 23 and Part 1 of Article 24 of the Constitution extends to the right to personal data protection and the “right to be forgotten” on the Internet. The Court stated that, even though the special nature of those rights presupposes their priority in relation to other rights, it does not exclude the possibility of their restriction. The Court emphasized that such restriction can take place “especially when it comes to information that does not pertain to the sphere of private life of a person in its narrow sense” and in order to provide public access to the information in protection of the constitutional values that prevail under the circumstances [p. 3].
Interpreting the contested law provisions, the Court stated that Part 1 of Article 3 and Part 1 of Article 8 of the Information Law secure the regulation grounds and implementation principles with regard to one’s right “to search, receive, transmit, produce and disseminate information in any lawful manner” [p. 3]. The Court also noted that the provisions assume their “concretization in legislation”, which can address the rights’ implementation and protection of citizens’ constitutional rights on the Internet [p. 3]. The Court also referred to Article 10.3 of the Information Law as such corresponding legislative concretization, which obliges an Internet search engine operator to remove search results at the request of an applicant if the information in question is unreliable, irrelevant or of a lost value, with the exception of information about criminally punishable acts, in relation to which the statute of limitations had not expired, and about crimes of individuals, where the criminal record was neither withdrawn nor expunged.
The Court concluded that the contested provisions act in connection with others, including Article 10.3 of the Information Law thus guiding courts on the basis of the factual circumstances of a case. The Court found that the provisions lead courts towards finding a balance between constitutionally protected values of “citizens’ access to information on the one hand and the protection of citizens’ rights when disseminating information about them on the other” – a mechanism to ensure citizens’ rights are protected in the information sphere. Therefore, the Court determined the provisions “cannot in themselves be considered as violating the constitutional rights of the claimant” [p. 4].
Citing Article 125 of the Constitution and Article 3 of the Federal Constitutional Law “On the Constitutional Court of the Russian Federation,” the Court noted it was the prerogative of the general jurisdiction courts to determine whether the search engine operator had the grounds to terminate issuance of the search results that the claimant had requested to remove.
Relying on the provisions of the Federal Constitutional Law, the Court refused to consider citizen K.’s complaint.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court’s ruling expands expression in the contemporary Russian context by upholding the freedom to search, receive, transmit, produce and disseminate information in any lawful manner as an underlying principle of the Federal Law “On Information.” However, by commenting on the courts’ necessity to strive for a balance between a person’s privacy and a public interest in information dissemination, the Court leaves reasoning gaps as it does not expand on either side of the “balance scales”, and in resorting to the provision on the “right to be forgotten,” the Court does not elaborate on the criteria for information removal.
A subsequent ruling of the Constitutional Court dated March 26, 2019 confirms that this case has a mixed outcome. In its ruling No. 849-O, the Court refused to consider the complaint of the SOVA Center for Information and Analysis, a Moscow-based nongovernmental organization and think tank, having upheld the provisions of the law on the “right to be forgotten” – Article 10.3 of the Federal Law “On Information.” Relying on the ruling in the case of Citizen K., the Court, yet again, concluded by stating the law provisions acted in connection with each other and guided courts in their assessment of factual circumstances towards a balance between a person’s privacy and a public interest in information dissemination. In March 2016, Google removed search result links to the SOVA Center’s materials on two extremism criminal trials. The lower courts ruled Google had not violated the organization’s right to freedom of information dissemination.
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: drawing from examples of several politicians who had turned to the provision to remove controversial information about them, the review 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;” several have done so through 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.
Let us know if you notice errors or if the case analysis needs revision.