Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
Closed Contracts Expression
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The Odintsovo City Court in Moscow, Russia held that a news article discredited the reputation of a politician and ordered its removal. The politician had approached the Court, arguing that an article published online which alleged he had violated the ethics code of the Russian Parliament was both false and discredited his reputation as a political figure. The Court held that even though it could not determine the owner of the information, it was entitled to order that the website which published that false information remove the offending information. The politician had also succeeded in getting the article removed from search results on the Russian search engine, Yandex, on the grounds of his right to be forgotten.
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In March 2015, the Russian news web portal RBC published an article about Sergei Zhigarev, a Russian politician, who had served as a Deputy of the State Duma – the lower house of the Federal Assembly of Russia – from 2011 until 2021. Zhigarev had been elected by the Shchyolkovo constituency in the Moscow region and represented the LDPR (the Liberal Democratic Party of Russia). According to RBC, Zhigarev’s claim concerned the article titled “The Man from Miami,” which was published in March 2015 by the RBC itself. The article alleged that Zhigarev’s family owned an undeclared apartment in Florida, U.S., which would constitute a violation of Russian legislation concerning the State Duma deputies and their property abroad. Referencing documents, the article stated the company Selfmount TOC 1604 LLC, which was possibly connected to Zhigarev and his family, had bought the apartment for $2.7 million. Zhigarev denied the allegations.
Zhigarev filed a lawsuit with a claim under Part 8 of Art. 152 of the Civil Code of the Russian Federation (the Code), stating that the allegations were untrue and discredited his reputation as a political figure. Zhigarev submitted that, due to his service in the seventh convocation of the State Duma, he had a status of a person endowed with power and corresponding requirements to meet. Art. 152 of the Code is titled “Protection of Honor, Dignity, and Business Reputation” and outlines the right of a citizen “to demand […] a refutation of information discrediting [their] honor, dignity or business reputation [in court], if the person who disseminated such information does not prove that it is true.” It states that when it is not possible to identify the individual responsible for the dissemination of information that discredits one’s honor, dignity, or business reputation, “the citizen in respect of whom such information is disseminated” has the right to take the matter to court “for recognition of the disseminated information as untrue.”
Federal Law No. 149-FZ “On Information, Information Technologies and Information Protection,” dated July 27, 2006 (the Information Law), regulates the spread of information in the Russian Federation. Part 1 of Art. 15.1 states that a unified automated information system – the Unified Register – is created with the purpose to restrict access to information on the Internet prohibited for dissemination on the territory of the Russian Federation. The Register contains the necessary data – domain names, web page indexes, network addresses – to identify the websites with prohibited information. Part 3 of the article states the Register is managed by “the federal executive body exercising the functions of control and supervision in the field of mass media, mass communications, information technology, and communications,” i.e., Roskomnadzor. Zhigarev stated he had undertaken all the possible measures to determine the owner of the information resource in question, as all available data in open sources had not provided the necessary information. Thus, Zhigarev claimed that it would be in the competence of Roskomnadzor – Russia’s Federal Service for Supervision of Communications, Information Technology, and Mass Media – to undertake measures on information access restriction in order to protect his rights.
According to Mbk.media, Zhigarev succeeded in his request to the Yandex search engine – one of the most popular search engines in Russia – for the links leading to false or irrelevant information about him to be removed from search results under the provisions of the “right to be forgotten” in Art. 10.3 of the Information Law.
Judge Mironova T.V. of the Odintsovo City Court of the Moscow Region, Russia, delivered the Court’s decision. The main issue before the Court was whether the RBC website had been disseminating information about Sergei Zhigarev that was false and which discredited his honor, dignity, and business reputation, and if it could be ordered to remove the information.
Zhigarev referred to Federal Law No. 3-FZ “On the Status of a Member of the Federation Council and the Status of a Deputy of the State Duma of the Federal Assemblies of the Russian Federation” dated May 8, 1994 (the Deputy State Duma Law), and argued that the RBC article violated that law. Part 2 of Art. 6 concerns “receiving remuneration not provided for by the legislation of the Russian Federation”, and Art. 10 concerns “providing false information about [his] income and expenses”, which constitute a violation of Art. 9 which sets out ethical standards. In addition, Art. 8 and 8.1 of Federal Law No. 273-FZ “On Combating Corruption” dated December 25, 2008, concerns interfering into the activities of the investigative and judicial bodies (also set out in Part 1 of Art. 18 of the Deputy State Duma Law), and “immoral behavior in private life” [p. 1]. Zhigarev argued the readers of the article would form a negative opinion of him.
The Court agreed with Zhigarev’s claims on the type of content distributed about him by the disputed information resources, and held that the Inspection Protocol dated October 17, 2019, executed by a Moscow notary “confirmed the fact of the dissemination of the disputed information” [p. 4].
Referring to Art. 152 of the Code and the right of citizens to pursue legal protection against the discrediting of their honor, dignity, and business reputation, the Court cited the Resolution of the Supreme Court’s Plenum No. 3 “On Judicial Practice in Cases of Protecting the Honor and Dignity of Citizens, as well as the Business Reputation of Citizens and Legal Entities,” dated February 24, 2005. The Court addressed Part 7 of the Resolution, which defined “the dissemination of information discrediting the honor and dignity of citizens or the business reputation of citizens and legal entities” as “the publication of such information in the press, broadcast on radio and television, demonstration in newsreel programs and other media, distribution on the Internet” [p. 4] and other telecommunication means (such as public speeches or statements addressed to officials). The Court also referred to Art. 17 of the Constitution of the Russian Federation, emphasizing the constitutional recognition and guarantees of one’s rights and freedoms in accordance with international law (Part 1 of the article), the provision on the exercise of one’s rights and freedoms in non-violation of the rights and freedoms of others (Part 3 of the article), as well as to Art. 23 which protects everyone’s right to defend their honor and good name (Part 1 of the article). The Court held that those rights – everyone’s right to the protection of their honor and good name as outlined in Art. 23 and 46 of the Constitution and “everyone’s right to the judicial protection of their honor, dignity, and business reputation from the dissemination of false and discrediting information” [p. 5] as outlined in Art. 152 of the Civil Code – led to the necessary restrictions of speech and mass media freedoms in case those freedoms were being abused.
The Court cited Part 1 of Art. 10 of the European Convention on Human Rights, noting everyone’s right to the freedom of opinion, which also included “freedom to hold opinions and to receive and disseminate information and ideas without any interference from public authorities and regardless of state borders” [p. 5]. The Court, however, also referred to Part 2 of the article, stressing the responsibilities, restrictions, and sanctions corresponding to such freedoms, including “in the interests of national security, territorial integrity or public order, to prevent disorder or crime, to protect health and morality, protecting the reputation or rights of others, preventing the disclosure of information received in confidence, or maintaining the authority and impartiality of the judiciary” [p. 5].
Considering that Zhigarew was unable to determine the owner of the disputed information resource, the Court held it was not possible to identify the owner of the website in question. Referring to the Resolution of the Supreme Court’s Plenum No. 3, the Court emphasized that, even in those cases when it was not possible to identify an individual behind the dissemination of information discrediting one’s honor, dignity, and business reputation, a citizen could resort to the means of judicial protection. The Court also cited Part 8 of Art. 152 of the Code, emphasizing that courts could recognize disputed information as false and discrediting in the absence of the identified individual disseminating such information.
The Court held that Zhigarev’s claim would be considered “in the order of special proceedings [according to] subsection IV of the Civil Procedure Code of the Russian Federation”, and concluded that the circumstances – the inability of the claimant to determine the defendant – led to the exclusion of action proceedings [p. 5].
The Court referred to Part 1 of Art. 15.1 of the Information Law which elaborated on the Unified Register created with the purpose to restrict access to information prohibited for dissemination on the territory of the Russian Federation, and noted that Roskomnadzor was the state agency responsible for managing the Register. The Court emphasized that information could be recognized as prohibited for dissemination in Russia in both out-of-court and court procedures; in the case of the former, the Court stressed, it could “be carried out by authorized state bodies” [p. 6]. The Court noted that “the current legislation does not contain a closed list of information recognized as prohibited for distribution on the territory of the Russian Federation in judicial proceedings” [p. 6]. The Court stressed that if the owners of websites that contained prohibited information failed to delete such information, telecommunications service providers became responsible for restricting access to prohibited information. Referring to Art. 15.1 of the Information Law, the Court noted that Roskomnadzor had to ensure the necessary access restriction measures would be taken, and that Part 5.1.7(1) of the Regulations on the Federal Service for Supervision of Communications, Information Technology, and Mass Communications, approved by Decree No. 228 of the Government of the Russian Federation on March 16, 2009, provided the agency with competence in access restriction matters.
The Court referred to Constitutional Court Decision No. 18-П dated July 9, 2013 “On the Case of Checking the Constitutionality of the Provisions of Paragraphs 1, 5, and 6 of Article 152 of the Civil Code of the Russian Federation in Connection with the Complaint of Citizen E.V. Krylov.” That decision stated that, even in the case of a crime committed on the Internet by an unknown person, the general principle, in which the perpetrator bore responsibility for the crime in question, prevailed. Elaborating on the cases with no identified perpetrator, as well as the cases with “the lack of legal grounds for prosecuting the owner of the relevant site […] or another person authorized […] to post information”, the decision stated that other measures – “such as the restoration of the situation that existed before the violation of the right, and the suppression of actions that violated the right or threatened to violate it” – could offer protection of the claimant’s rights [p. 6]. In that decision, the Constitutional Court also referred to Part 3 of Art. 17 and Part 1 of Art. 21 of the Constitution, which stated that the rights of the citizen whose honor, dignity, or business reputation were discredited held priority over the rights of the owner of the website – a non-mass-media outlet – which had spread the disputed information or another individual authorized by the website’s owner to do so. The Constitutional Court stated such prioritization was to take place in order to restore the individual’s dignity “by a person who had the technical ability, without prejudice to [their] rights and legitimate interests, to delete information recognized by the Court as false” [p. 6].
The Court emphasized that the Constitutional Court’s decision determined that a judicial recognition of the discrediting information in question as false led to the obligation to delete that information by the website’s owner or the person authorized to post information on that website. The Constitutional Court had held that such an obligation was “not a measure of responsibility for a guilty offense but a legal way to protect the right” [p. 7] of an individual. The Constitutional Court noted that if an evasion of the obligation fulfillment took place, the Court could oblige the website’s owner or the person authorized to post information on the website in question to undertake the necessary measures, which could entail claims for damages and moral damage compensation. In its decision, the Constitutional Court also stressed that “similarly, a citizen, in respect of whom defamatory information was disseminated on a site on the Internet, had the right to file a claim to the Court” requesting the deletion of the disputed information by the website’s owner or a person authorized to disseminate information on that website, and that a judicial procedure recognizing the disputed information as false was required in that case [p. 7].
Accordingly, the Court ruled in favor of Zhigarev, having recognized the disputed information as false. Reiterating the impossibility to identify the owner of the information resource in question, the Court held that the protection of Zhigarev’s rights could be provided by Roskomnadzor’s access restriction measures.
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. In its ruling, the Court failed to properly attend to the aspect of public interest value in the disputed information. Following this judgment, on March 3, 2020 RBC received a notification from Roskomnadzor, requesting the deletion of the article.
This case follows a trend of the Russian judiciary finding in favor of those who hold power – in business or politics – in matters of honor, dignity, and reputation protection. According to RBC, on March 21, 2019, the Oktyabrsky District Court of Belgorod ruled in favor of Andrey Skoch, also a politician and State Duma Member, in a case of reputation protection against several media outlets (including independent newspaper Novaya Gazeta and TV channel Dozhd) and several individuals. The Court held that the information published by those media outlets was “discrediting” Skoch. The lawsuit came in response to Novaya Gazeta’s publication about Skoch’s alleged ties with crime bosses Andrei Kochuykov and Zakhary Kalashov (Shakro Molodoy).
In addition, as Mbk.media reported, both Zhigarev and Skoch successfully filed applications to the Yandex search engine operator with requests for the links that led to false or irrelevant information about them to be removed from search results under the provisions of the law on the “right to be forgotten.” The Yandex search engine removed a number of links concerning Zhigarev and Skoch, as Mbk.media noted: if one attempts to search their names, the search engine warns, “Some of the search results are hidden in accordance with Federal Law No. 264-FZ of July 13, 2015.”
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