Responsibilities of search engines: how to “edit” a search in Russia
For a long time, the search for information on the Internet was not directly regulated by laws and no one could force the search engine to show or hide certain information in the search results. But since 2015, the Russian legislator has managed to grant the right to “edit” the search results to users (individuals), copyright holders and the state. Search engine operators, in turn, have responsibilities related to the formation of search results not only in accordance with their own algorithms and user requests, but also with the new regulatory rules.
Right to oblivion
“The Right to Oblivion” is a 21st century legal product that was coined not so long ago in Europe as a tool to protect a person’s private life. The beginning was laid when in 2014 the Court of Justice of the European Union (CJEU - Court of Justice of the European Union) in the decision in the case of Google Spain v. AEPD and M.K. Gonzalezdecided that people have the right to remove information about them from the search results (delisting, de-listing) if such information is “incorrect, irrelevant or excessive” (inadequate, irrelevant or excessive). This case was considered in the context of regulation of the processing of personal data, which generally allows a person to control how and why his personal data is processed, including requiring the deletion or correction of data. Signor González did not like the fact that when he was google, the first thing in the search was an article 20 years ago about selling his property from the auction because of debts, and this made a bad impression and prevented him from doing business.
As a result , the EU Court agreed that users (and Signor Gonzalez in particular) have the right to demand from the search engine to remove incorrect, irrelevant or unnecessary information about themselves from the search results. But the court also emphasized that there are exceptions to the rule, for example:
- information is of public interest, scientific value, etc .;
- delisting should not violate the right of other users to access information;
- delisting should not restrict freedom of speech.
After a couple of years, the “right to oblivion” appeared in Russia , in a local interpretation. On January 1, 2016, Article 10.3 of Federal Law No. 149-ФЗ “On Information, Information Technologies and the Protection of Information” (hereinafter, the Law on Information) came into force. This norm allows the user (applicant) to require the search engine operator to remove from the search results links to pages of sites that contain information about the applicant if:
- information is distributed in violation of the laws of the Russian Federation;
- Information is false;
- information is irrelevant;
- information has lost value for the applicant due to subsequent events or actions of the applicant.
In practice, requests to delete information on the right to oblivion often come from persons who have been prosecuted or suspected of participating in illegal activities. In addition, people are trying to remove negative reviews about themselves, information that is offensive and defamatory in nature, unsuccessful photos, or any other personal data.
While article 10.3 of the law on information expressly provides for the possibility of the applicant to appeal against the refusal of the search engine operator to delist in court, the law does not say anything about the interests of persons “on the other end of the wire” - direct distributors of information cannot challenge the exclusion of links to their sites from search results. In all its glory, such an imbalance of rights appeared in the case of the Sova Center public organization against Google, which was considered in court in connection with the removal from Google Search of links to two news articles about the course of the criminal trial of neo-Nazis from Obninsk.
As we wrote earlier, a public organization received notifications from Google that links were removed from search results in compliance with the law on the right to oblivion. At the same time, Google did not report either the person who requested the removal of the links or the specific grounds for the “search cleansing”. At first, the Sova Center challenged the actions of the search engine in court, appealing to the fact that news and, in general, information about serious crimes is significant for society and should not disappear from the search only at the request of a private person (former convict). But the arbitration courts of all instances refused to satisfy the claim of the public organization, believing that the site owner does not have the right to appeal the actions of the search engine under article 10.3 of the information law, and then the Sova Center decidedappeal this rule of law in the Constitutional Court of the Russian Federation. “This is one of the reasons why we consider the norm to be inconsistent with the Constitution. In conjunction with the user-search engine, the distributor of information, the latter remains powerless and has no opportunity to object to delisting, ” said Ekaterina Abashina, lawyer at the Center for Digital Rights and RosKomSvobody, who represented the public organization in the arbitration process. In addition, problems with the right to oblivion are caused by the transfer of socially significant decisions to private companies (search engine operators).
As noted by representatives of search engines themselves, the law grants the operators of search engines non-core functions of courts or law enforcement officials. The broad formulations of the law and the lack of mechanisms to maintain a balance of interests between different actors led to many problems in law enforcement. Search engines are forced to consider a huge number of information removal requests (according toIn the first three months of the law’s validity, the search engine received more than 3,600 requests from 1,348 people), while most of these requests are not subject to satisfaction (about 70%), and the satisfaction of other requests could potentially violate the rights of information disseminators and Internet users. In this context, the position of the Constitutional Court of the Russian Federation on the right to oblivion may introduce the necessary certainty into the Russian practice of applying Art. 10.3 of the Law on Information, to correct the existing imbalance of rights of various entities, as well as private and public interests (the Sova Center filed an appeal with the Constitutional Court of the Russian Federation on February 1, 2019, and it is currently under preliminary consideration).
For a long time it was not clear to what extent search engines promote the distribution of illegal content on the Internet, whether search engine operators should be responsible for the actions of violators, and if so, which. In Russia, before the introduction of the next “anti-piracy” amendments in 2017, copyright holders tried to apply various mechanisms to hold search engines accountable: they tried to prove a direct violation by copyright search engines, they used the provisions on the responsibility of information intermediaries. In some cases, such attempts are even successful. But usually in such cases, bringing the search engine operator to responsibility for copyright infringement is not directly related to the operation of the search function.
For example, in January of this year, 300 thousand rubles of compensation were recovered from Yandex for violating exclusive rights to the covers of the “Hands Up” albums posted on music.yandex.ru. However, this case did not concern Yandex search functions, the company acted precisely as the owner of the site, a technical intermediary between users and persons who post content on the site.
It is important to note that search engines are not recognized as information intermediaries within the meaning of Art. 1253.1 of the Civil Code of the Russian Federation. Search engines implement only technical functions, index information in accordance with certain algorithms. As indicated the experts of "Yandex", enabling access to the material or information necessary to produce it, it involves the preparation and use of such information, while the search engine operator does not control the materials, which includes the location. This conclusion is confirmed by judicial practice.
In 2017, in one of the arbitration casesIn which the copyright company wanted to oblige Yandex to remove links to web pages with illegal content, referring to the rules on information intermediaries, the courts sided with the search engine operator. The Moscow Arbitration Court and the Court of Appeal were guided by the fact that “the search results for each end-user request are generated completely automatically and are a list of links indicating which network addresses on the Internet at the current time according to the indexing data available in the search engine database, information may be relevant to a user-specified request. Familiarization with information (access to it) is carried out by users directly on these sites, and not on search engine sites,
However, in the same 2017, under the third anti-piracy law (also called the “law on mirrors”), search engine operators established requirements to remove links to sites from the search engine that repeatedly violated copyright or related rights. Violations of copyright fixesThe Moscow City Court, and after making a decision on the claims of copyright holders, sends a judicial act for execution to Roskomnadzor. Within a day from the moment the Moscow City Court’s decision on the permanent restriction of access to certain sites was received, Roskomnadzor sends the search engine operators the requirement to completely remove links to sites blocked forever for repeated violation of exclusive rights to content (that is, after making two decisions of the Moscow City Court one by one to the same site). After that, the search engines have one day to fulfill these requirements. Thus, the search engines were actually included in the Russian anti-piracy mechanism, they have new responsibilities related to the protection of copyright and related rights on the Internet.
In 2018, after a series of cases in the lawsuits of the group of companies that are part of Gazprom Media against Yandex, the search engines got even more responsibilities. The litigation examined by the Moscow City Court concerned links to illegal content on yandex.ru (in particular, the Yandex.Video service). The rightholders, in the order of preliminary interim measures, demanded “to stop creating technical conditions ensuring the placement of works on yandex.ru”. The Moscow City Court satisfiedthese requirements, citing, inter alia, that “not only the search result on request, but also the object of exclusive right is posted on yandex.ru”. After Yandex failed to judicially achieve the cancellation of the determinations of interim measures in the form of blocking the service, the search engine voluntarily deleted the controversial links, and the case was dismissed.
Against the backdrop of these lawsuits, Yandex took part in negotiations with copyright holders and agreed to sign a memorandum on the fight against piracy, which implies the removal of links to illegal content out of court. Total document signed12 companies. On the part of Internet sites, these are Yandex, Rambler Group, Mail.Ru Group and Rutube. On the part of copyright holders - Channel One, VGTRK, National Media Group, Gazprom-Media, Internet Video Association, Association of Film and Television Producers, Kinopoisk Service. The guarantor of the memorandum became Roskomnadzor. The Memorandum provides for additional measures to combat illegal content on the network - the creation of a “private” registry in which the copyright holders can make links to which the content is illegally placed. The registry holder and the verifier of the applications of the copyright holders are Roskomnadzor. Participating companies are given 6 hours to remove links from search results and from Internet services. The main purpose of concluding the memorandum is to complicate the search for illegal content and out of court as much as possible. With this memorandum Valid until September 1, 2019. It is assumed that before this time, the Russian legislation will be amended accordingly, taking into account the provisions of the memorandum.
In this context, it is worth recalling the bills developed in 2017 by the Ministry of Culture of the Russian Federation. The Ministry of Culture proposed nevertheless to unambiguously qualify search engine operators as information intermediaries, so that it would be possible to impose on them the obligation to stop issuing links to sites with illegal content without trial. Then the bills were rejected as having a negative regulatory impact. A negative opinion on the bill preparedThe Ministry of Economic Development of Russia after holding public consultations with the Russian Union of Industrialists and Entrepreneurs, PJSC Rostelecom and the Association of Electronic Communications RAEC. In particular, the conclusion notes that “the draft act does not provide for a mechanism to verify the information provided, as well as a mechanism for notifying relevant resources of applications filed against them to the search engine operator. Under these conditions, there is a risk of violation of the rights of bona fide resources. ”
Despite negative reviews, work on similar bills on “delisting” without trial continues to this day. It is also proposed to oblige search engines to display sites with legal content in priority mode. However, the final text of the bill has not yet been worked out. According to open sources , such a bill should appear by early September 2019.
In Russia, the normative algorithm for the interaction of search engine operators with government bodies and copyright holders regarding illegal content on the Internet was introduced not so long ago (in 2017). At the same time, judging by the proposals of the Ministry of Culture and the emergence of an anti-piracy memorandum, almost immediately there was a tendency to reduce the “distance” between search engines and copyright holders and to accelerate delisting procedures by excluding the judiciary from the mechanisms for protecting rights to content on the network.
In addition to the law on the right to oblivion and anti-piracy legislation, there are other burdensome rules providing for the obligation of a search engine to remove information from search results.
In 2017, Law No. 276-ФЗ On State Regulation of the Use of Anonymizers and VPN was also adopted, which significantly expanded the state’s powers to “suppress” the distribution of materials prohibited in Russia. Owners of anonymizers, VPNs and other proxy systems, as well as search engine operators, must connect to the Roskomnadzor information system ( FSIS ). The FSIS includes all banned Internet resources that are subject to delisting by search engine operators.
Most search engine operators operating in the Russian market have complied with this requirement, but not all. Google refused to connect to the FSIS and chose to pay a fine of 500 thousand rubles. Roskomnadzor threatened to block Google if it continues to ignore “Russian requirements for filtering search results from banned content.” However, the prospects for such a move are very doubtful. As the project manager of Roskomsvoboda, Artem Kozlyuk, said in an interview with The Insider: “Google’s blocking by Roskomnadzor is beating itself.”
Speaking about Google, one cannot fail to note the initiative of a search engine called Transparency Report. Google regularly makes statistical reports about content removal requests, including from web search. According to statistics, requests for removing information from a web search account for just over 20%. But do not assume that the search engine meets all the requirements for removing content. The chart prepared by Google clearly shows the proportion of deleted information. On average, Google satisfies about 70% of requests from Russian authorities.
As you can see, in 2016, the Russian legislator began to actively “drag out” search engines into mechanisms to suppress the distribution of digital content and online materials in Russia in the private and public interests. For the territory of Russia, search engine operators are obliged to consider users' applications on the right to oblivion, hide illegal content from users in the interests of copyright holders, and also protect users from prohibited information. The effectiveness and fairness of the created mechanisms remains to be assessed by the users themselves ...