Not a single Roskomnadzor

    For five years I have been watching discussions around the reality of Roskomnadzor around the Russian Internet and continue to note that part of the IT community has a poor idea of ​​how locks work and why they work that way. This is a legal question, and then I will try to introduce you to it. I warn you, reading is not Friday at all.

    The shortest history of the issue


    “Guaranteed freedom of the media. Censorship is prohibited ” - paragraph 5 of Article 29 of the Constitution of the Russian Federation.

    Officials distinguish between the concepts of censorship and “restrictions on the dissemination of information” (this is what blockages are called in the laws), and since the Constitution allows the restriction of rights and freedoms, the restrictions themselves, which will be discussed later, are not unlawful.
    “The rights and freedoms of man and citizen may be restricted by federal law only to the extent necessary to protect the foundations of the constitutional system, morality, health, rights and legitimate interests of others, to ensure the defense of the country and the security of the state” - paragraph 3 of the article 55 of the Constitution of the Russian Federation.

    Although the Constitutional Court noted that there must be serious reasons for this, legal scholars agree that in the vast majority of cases it is not difficult to justify one or another restriction of the right to information.
    “Public interests listed in article 55 (part 3) of the Constitution of the Russian Federation can justify legal restrictions on rights and freedoms only if they meet the requirements of justice, are adequate, proportional, proportionate and necessary to protect constitutionally significant values, including rights and the legitimate interests of others, do not have retroactive effect and do not affect the very essence of constitutional law ” - Definition of the Constitutional Court of the Russian Federation of 18.09.2014 N 1818-O.



    The history of establishing such restrictions began with the fight against extremism. In the absence of specialized laws, the courts, which regularly received complaints from prosecutors on websites on the world network, were forced to interpret the provisions of the current legislation and interpret it in accordance with general principles of law - this is normal practice in this situation.

    Legislation provided only a general ban on the distribution of extremist materials. The Supreme Court in its decision established that the telecom operator, which provides free access to extremist materials, is in fact their distributor, and upon request, it is obliged to take measures to restrict access to them.

    On July 11, 2012, the State Duma adopted a number of amendments to the law “On the Protection of Children from Information Harmful to Their Health and Development” and a number of acts. Such categories as “website on the Internet”, “website page on the Internet”, “domain name”, “network address”, “website owner” and “hosting provider” appeared in Russian law.

    The law provided for the creation of a “Unified Register of domain names, page indexes of sites on the Internet and network addresses to identify sites on the Internet that contain information the distribution of which is prohibited in the Russian Federation”.
    The administration of this structure was entrusted to the Federal Service for Supervision of Communications, Information Technologies and Mass Communications, Roskomnadzor.

    The nuances of the procedure for including the network address in the registry were determined by the temporary regulations of November 1, 2012 , which remains in its original form to this day.

    An Internet resource that fell into the Roskomnadzor Register is usually not blocked immediately. Roskomnadzor should inform the hosting provider, and that, in turn, convince the site owner to remove the content that violates the law or to do it yourself. Notifications are sent in Russian and English by e-mail. Only three days later, if the requirements are not met, access to the site is blocked by telecom operators. For this, telecom operators are provided with round-the-clock access to information from a single registry.

    Not only Roskomnadzor, but also the Federal Service for Drug Control of the Russian Federation and the Federal Service for Supervision of Consumer Rights Protection and Human Well-Being were vested with authority to add sites to the registry. On December 28, 2013, they were joined by the prosecutor's office in the person of the Prosecutor General of the Russian Federation and his deputies.

    The entry of Russia into the World Trade Organization required the fight against offenses in the field of intellectual property, and here the registry turned out to be very helpful.

    On July 2, 2013, the so-called Anti-Piracy Law was adopted, which protected audiovisual works. Despite the wide resonance and the 100,000th petition on the website of the Russian Public Initiative, it was described as “having proved its effectiveness”, and all objects of copyright and related rights distributed on the Internet, with the exception of photographic and other similar works, were subsequently included in its scope . By the way, the reason why this exception was made and remains is very vague.

    On October 12, 2015, the Federal Tax Service joined the regulators of the Internet space.

    Shelving


    Today, access to four groups of information is limited:



    The first group is information subject to prohibition by decision of executive authorities. It includes: child pornography, information on how to purchase or manufacture drugs, on methods of committing suicide, calls for suicide, information on minors who have suffered as a result of illegal actions, and information that violates the ban on gambling and lotteries.

    Roskomnadzor makes decisions to ban access to pornographic images of minors and to other categories of information if it is found on media sites.

    The FSKN was previously engaged in drugs, after its disbandment, these functions were transferred to the Ministry of Internal Affairs. The Federal Service for Supervision of Consumer Rights Protection and Human Well-being searches the network for information on suicides, and the Federal Tax Service on casinos.

    The second group - various information distributed with copyright infringement on all works except photographic.

    The restriction of the distribution of such information is carried out by Roskomnadzor in a special manner, after the copyright holder appeals to the Moscow City Court. It is for pirated sites that repeatedly violate the law that a permanent or, as it is sometimes called an “eternal” blocking, is foreseen, which cannot be removed in principle. The law simply does not have a norm that would allow this to be done.

    The third group - calls for extremist activities, riots and participation in public events held with violations, access to which is limited by the requirements of the Prosecutor General of the Russian Federation and his deputies. Its peculiarity lies in the fact that the blocking occurs immediately after the data are received by Roskomnadzor, without delays and warnings, and the site owner and hosting provider are notified of the violation after the fact.

    If in the first three groups everything is more or less unambiguous, then the borders of the fourth , which the courts deal with, are very blurred.

    It includes materials included in the federal list of extremist, personal data, whose collection was carried out in violation of applicable law and any other information found to violate the law by the district court of general jurisdiction.

    In recent years, the courts have made enough decisions to say with confidence that the practice of imposing bans is taking on an ever-increasing scope and bizarre forms.

    This is due to the inconsistency, fragmentation of the introduction of new prohibitions and the fact that, creating new mechanisms to limit access to information, the legislator did not bother to adjust the existing practice.

    Theater of the absurd


    Claims, as a rule, initiated by the prosecutor's office of the Russian Federation in defense of an indefinite circle of persons, are considered with the involvement of a provider or Roskomnadzor as a formal defendant, whose representatives do not appear at the meeting. It is unlikely that they can be blamed for this, they are not interested, and they are not obliged to advocate for the owners of the sites.

    So the courts enter into the Register a variety of categories of information that are not listed in the law.
    Here you have to turn to the text of the law.



    The grounds for including [network addresses] in the register are: a court decision that has entered into legal force on recognition of information distributed through the Internet as information that is prohibited in the Russian Federation ” - part 2 of paragraph 5 of Article 15.1. Federal Law of July 27, 2006 N 149-ФЗ On Information, Information Technologies and Information Protection. ”

    The norm, the dimensionless nature of which is already recognized by many jurists, is interpreted even more widely.
    Article 9 of Federal Law No. 149-FZ provides for the possibility of restricting access to information in order to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of others, to ensure the country's defense and state security. Thus, the above-mentioned legal norms in their interconnection prohibit the dissemination of information on tax evasion methods ” - Decision in the case 2-2442 / 2014 ~ M-2838/2014 Oktyabrsky District Court of Stavropol .

    In practice, there is a substitution of concepts. “Information for the dissemination of which criminal or administrative liability has been established” turns into “information on acts for which criminal or administrative liability has been established”, that is, the dissemination of information in one way or another related to administrative or criminally punishable acts is limited.
    “Articles 290 and 291 of the Criminal Code of the Russian Federation criminalize crimes such as receiving and giving a bribe ... Thus, the court considers that the above legal norms stipulate in their interconnection that the dissemination of information related to the propaganda of receiving and giving a bribe cannot be recognized as legal. This information is information the distribution of which is prohibited in Russia. Therefore, the requirements of the prosecutor must be satisfied ” - Decision No. 2-536 / 2015 2-536 / 2015 (2-5791 / 2014;) ~ M-7318/2014 2-5791 / 2014 M-7318/2014 of January 19, 2015. in case No. 2-536 / 2015 of the Kalinin District Court of the city of Tyumen .



    In the same spirit, court decisions to ban cryptocurrency sites were compiled (subsequently, the court decision was successfully appealed), decisions to block access to sites containing information on the possibility of illegally acquiring education diplomas, sites selling pesticides , online pharmacies , and homework ready for schoolchildren , instructions for making Roman candles, fireworks , electric rods and many other judicial acts.
    “... the content of the site is contrary to the principles of humanism, morality, has a negative impact on the moral, spiritual, mental and physical development of citizens, including minors” - Decision No. 2-2060 / 2016 2-2060 / 2016 ~ M-1871/2016 M- 1871/2016 dated June 6, 2016 the Oktyabrsky District Court of Saransk in the case No. 2-2060 / 2016 .

    The carelessness of the wording, the reference to the “foundations of morality of Russian citizens”, “the authority of the Russian Federation”, “propaganda” and other concepts, which are not clearly defined in any law, are cause for concern.
    “To include in the Register“ information that promotes travel on a railway transport in a prohibited way, on non-designated parts of rolling stock ... and calls for unlawful acts that could cause harm to the life and health of citizens, including minors ” - Decision in the case No. 2-957 / 2015 ~ M-171/2015 dated 02.02.2015 Zamoskvoretsky District Court of Moscow.

    In such circumstances, whether access to information is prohibited or not depends not on clear criteria, but on the discretion of the district judge, who, quite possibly, does not use the Internet. And if such decisions still somehow "get along" with the law, then some come into conflict with it.

    It is about blocking sites selling food products that are subject to sanctions, and travel packages to some foreign countries.


    “Article 9 of Law No. 149-FZ provides for the possibility of restricting access to information in order to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of others.
    In accordance with Art. 12 of the Civil Code of the Russian Federation ways to protect civil rights, in particular, is the suppression of actions that violate the law or create a threat of its violation. Thus, the placement on the Internet of information on the sale of agricultural products, raw materials and food banned from import into the Russian Federation leads to a violation of special economic measures used to ensure the interests and security of the Russian Federation, to eliminate or minimize the threat of violations of rights and the freedoms of its citizens ”
    -Decision in the case 2-1758 / 2015 ~ M-1812/2015 dated October 30, 2015 Belorechensky District Court of the Krasnodar Territory.

    These are by no means isolated cases. One Prosecutor's Office of the Saratov Region claims to block 407 Internet resources, "through which it was illegal to organize the supply of food products on the list of agricultural products, raw materials and food prohibited for import into the territory of the Russian Federation . " In them, the introduction of restrictions is justified by references to Government decrees and presidential decrees and is explained by the interests of the Russian Federation.
    “The information published on the pages of 23 Internet sites, regarding the sale by tour operators and travel agents to citizens of the Russian Federation of a tourist product that provides for visiting the territory of the Republic of Turkey, has been recognized as unlawful and violating the rights of consumers to receive the necessary and reliable information about the service being sold and is prohibited for distribution on the territory Of the Russian Federation ” - Decision of the Ostankino District Court of 04/27/2016. at the suit of Rospotrebnadzor.

    If desired, so you can set a restriction on the distribution of any information. But after all:
    “The legal regulation of relations arising in the field of information, information technology and information protection is based on the following principles:
    ... establishing restrictions on access to information only by federal laws”
    - paragraph 2 of Article 3 of Federal Law of July 27, 2006 No. 149-FZ (as amended by 07/29/2017) "On information, information technology and the protection of information."

    The most unpleasant thing is that the site owner learns about the blocking of his resource by the court already in the process of execution of the decision, after the expiration of the appeal period, and to restore it he is forced to go to the district court of a remote region of the Russian Federation. There are also frequent cases of duplication of decisions regarding one information resource in various courts. Then the situation is even more complicated.

    It is not surprising that such decisions are rarely disputed, forming a stable body of judicial practice, which other courts and the legislator ultimately focus on when developing new initiatives.

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