Content Regulation / Censorship
Loughran v. Century Newspapers Ltd
Closed Contracts Expression
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The Russian Constitutional Court held that the legal provisions obliging search engines to remove information at the request of citizens were permissible. A non-governmental organization had approached the courts after it had been informed by Google that two of its website articles had been removed from search results following requests from individuals. The organization argued that the provisions requiring such a removal of information infringed the constitutionally-protected rights to freedom of thought and speech and to freely seek, receive, transmit, produce and distribute information. The Court held that the law protects individuals’ right to be forgotten and that the provisions ensure a balance between the rights to freedom of expression and access to information with individuals’ privacy rights.
Columbia Global Freedom of Expression notes that some of the information contained in this report was derived from secondary sources.
The SOVA Center for Information and Analysis is a nongovernmental organization and think tank based in Moscow that addresses the issues of radical nationalism and xenophobia, interrelations between religion and society, and anti-extremism policy and its abuse. On December 30, 2016 it was added to the register of “foreign agents” following the decision of the Ministry of Justice, and it has remained there since.
According to the SOVA Center, on March 22 and 27, 2016, they received two letters from Google, in which Google as a search engine operator informed the SOVA Center that it would proceed with removing search results to two of the Center’s articles at the requests of unknown individuals. The letters referred to two news pieces titled “Skinheads Who Beat an Angolan Are Convicted in Obninsk” (published in 2006) and “Conviction of Eight Nationalists Who Distributed Videos of Neo-Nazi Attacks on the Internet has Entered into Force” (published in 2008).
The SOVA Center filed a lawsuit against Google, requesting the search engine to restore access to the removed search results. The Center emphasized that the removed materials contained information on the conviction of several individuals under Article 282 “Inciting Hatred or Enmity, as well as Humiliation of Human Dignity” of the Criminal Code of the Russian Federation. According to the Russian Legal Information Agency, on June 28, 2017, the Moscow Arbitration Court dismissed the organization’s claims; the Ninth Arbitration Appellate Court and the Court of Cassation upheld the order from the First Instance Court; and the Supreme Court of Russia ruled it would not review the lower courts’ decision. The courts held that Google was “not an appropriate defendant”, and that although Google had removed only a particular link to the materials at the search request of a particular name, it had neither deleted the materials, nor blocked their search following other requests [p. 3]. The courts also concluded that the SOVA Center had failed to prove that Google had, in fact, removed the links to the Center’s materials from search results entirely, as Google provided access to the news pieces in question through search requests with names of the convicted individuals, as well as through other types of search requests relevant to the materials’ content (such as the title, text fragments, etc.).
On February 1, 2019, the SOVA Center filed a complaint with regard to the provisions of the law on the “right to be forgotten” to the Constitutional Court of Russia. Federal Law No. 149-FZ “On Information, Information Technologies and Information Protection” (the Information Law) dated July 27, 2006 regulates the spread of information in the Russian Federation and 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 the listing of search results after requests from citizens, if the 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.” The article was put into effect by Part 2 of Art. 1 of Federal Law N 264-FZ “On Amendments to the Federal Law “On Information, Information Technologies and Information Protection” (the Amendment Law) and Art. 29 and 402 of the Civil Procedural Code of the Russian Federation” (the Code) dated July 13, 2015.
The main issue before the Court was whether the provisions of the law on “the right to be forgotten” that oblige search engine operators at the requests of individuals to remove search results infringed the Constitution of the Russian Federation.
The SOVA Center challenged the constitutionality of Art. 10.3 of the Information Law, Part 2 of Art. 1 of the Amendment Law, and Art. 29 and 402 of the Code. It argued that the contested law provisions “unreasonably restricted the dissemination of socially significant information about criminal offenses” [p. 3]. The SOVA Center submitted that the provisions contradicted sections of the Constitution: Part 3 of Art. 17 (on the exercise of one’s rights and freedoms in non-violation of the rights and freedoms of others); Part 1 of Art. 19 (on everyone’s equality before the law and the courts); Parts 1 and 4 of Art. 29 (on the guarantee of everyone’s freedom of thought and speech and on everyone’s right “to freely seek, receive, transmit, produce and distribute information in any lawful manner”); Part 1 of Art. 46 (on the guarantee of everyone’s judicial protection); and Parts 1 and 3 of Art. 123 (on the open trials in all courts and on judicial proceedings on the basis of competitiveness and equality of the parties).
The Court cited the constitutional provisions in Part 1 of Art. 23 on everyone’s right to privacy, personal and family secrets and Part 1 of Art. 24, which “prohibits the collection, storage, use and dissemination of information about a person’ private life without consent” [p. 3]. The Court also referred to everyone’s right “to freely seek, receive, transmit, produce and distribute information in any lawful manner” [p. 3], freedom of mass media, and the prohibition of censorship under Parts 4 and 5 of Art. 29 of the Constitution. The Court emphasized that those provisions hold equal significance and protect “the interest of a private person in ensuring [their] privacy, on the one hand, and the interest of a wide public access to information, on the other hand” [p. 3]. Referring to its ruling N274-O from February 12, 2019, the Court stressed the two interests are “not in a state of dominance and subordination and do not have unconditional priority over each other” [p. 3].
Citing its ruling N3087-O from November 26, 2018, the Court stated that the individual rights granted by Art. 23 and Part 1 of Art. 24 of the Constitution “extend, among other things, to rights derived from them (the right to personal data protection, the “right to be forgotten” on the Internet)” [p. 3]. However, it emphasized that the law does not exclude restriction of these individual rights by the provision of public access to information in protection of constitutional values, which prevail in a particular situation, “especially when it comes to information that does not pertain to the sphere of private life of a person in its narrow sense” [p. 3].
Interpreting Art. 10.3 of the Information Law, the Court held that the law “does not exclude the possibility of restricting such a ‘right to be forgotten’ in cases where the information has unconditional public significance” [p. 4]. The Court defined “the information of unconditional public significance” as containing data 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 dismissed the SOVA Center’s claim that the notions of “irrelevant information” and “information no longer relevant to the applicant due to subsequent events or actions” led to uncertainty in the content of the contested law provision. It held that the notions “pursued the goal of effective application of the norm to an unlimited number of specific legal situations”, and stressed that these evaluative notions would be interpreted in legal practice in relation to the factual circumstances of cases [p. 4].
Citing its ruling N3087-O, the Court held that the contested law provision acted in connection with the other provisions of the Information Law and guided courts “to find balance between constitutionally protected values (citizens’ access to information on the one hand and the protection of citizens’ rights when disseminating information about them, on the other)” based on the examination of factual circumstances of cases [p. 4].
The Court concluded the contested law provisions that provide information rights to citizens could not be considered “as violating the constitutional rights of the claimant” [p. 4]. The Court stated that determination of whether the search engine operator had acted lawfully was the prerogative of the general jurisdiction courts.
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, as it does not elaborate on the criteria for information removal under the provision on the “right to be forgotten” and, in the necessity to strive for a balance between a person’s privacy and a public interest in information dissemination, the Court does not expand on either side of the “balance scales.” 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”. In March and April 2019, in two cases, the Appellate Court in Perm region upheld orders from the First Instance Court, which had ruled in favor of businessman Oleg Cherepanov and obliged Mail.ru, Yandex, and Google to remove 8-10 links from their search results at the request of “Cherepanov O.P.” According to MBK Media, Cherepanov succeeded in removing references about his detention by officers of the Organized Crime Control Department of the Central Internal Affairs Directorate on January 18, 2007 on suspicion of illegal imprisonment and illegal entry into a dwelling. 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 practically in Russia: drawing from examples of several politicians who had turned to the provision to remove controversial information about them, the review found the politicians had received more publicity and attention to the information they had intended to conceal.
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.
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