Not Roskomnadzor uniform
For five years, I have been watching the discussions around the reality of Roskomnadzor around the Internet and still note that part of the IT community has a poor idea of ​​how locks work, and why they function this way. This is a legal question, and then I will try to introduce you to it. I warn you, reading is not at all Friday.
Officials demarcate the notions of censorship and “restricting the dissemination of information” (blocking is called so in the laws), and since the Constitution allows restriction of rights and freedoms, the limitations themselves which will be discussed later, are not something illegal.
Although the Constitutional Court noted that there must be a good reason for that, lawyers agree that in the overwhelming majority of cases it is not difficult to justify a restriction of the right to information.
The history of the establishment of such restrictions began with the fight against extremism. In the absence of specialized laws, the courts, which regularly received complaints from prosecutors at sites on the global network, were forced to interpret the provisions of the current legislation and interpret it in accordance with the general principles of law - a normal practice in the current situation.
The legislation provided for a general ban on the distribution of extremist materials. The Supreme Court, in its decision, established that the telecom operator providing free access to extremist materials is in fact their distributor, and upon request he is obliged to take measures to restrict access to them.
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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 other acts. In the Russian legislation, such categories as “website on the Internet”, “website page on the Internet”, “domain name”, “network address”, “website owner” and “hosting provider” have appeared.
The law provided for the creation of a “Unified Register of Domain Names, Website Indexes on the Internet and Network Addresses that allow identification of websites on the Internet containing information that is prohibited in the Russian Federation.”
The administration of this structure was entrusted to the Federal Service for Supervision in the Sphere of Telecommunications, Information Technologies and Mass Communications - Roskomnadzor.
The nuances of the procedure for inclusion in the register of the network address were determined by the temporary regulations of 01.11.2012 , which is valid in its original form to this day.
An Internet resource that has entered the Roskomnadzor Register is usually not immediately blocked. Roskomnadzor must inform the hosting provider, and the latter, in turn, will convince the site owner to remove content that violates the law or do it himself. 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 of the Russian Federation for Drug Control, the Federal Service for Supervision of Consumer Rights Protection and Human Welfare were authorized to enter the site register. On December 28, 2013, the prosecutor's office in the person of the Prosecutor General of the Russian Federation and his deputies joined them.
Russia's accession to the World Trade Organization demanded the fight against violations in the field of intellectual property, and here the registry turned out to be most welcome.
On July 2, 2013, the so-called “Anti-Piracy Law” was passed, which defended audiovisual works. Despite the wide resonance and the one hundred thousandth petition on the website of the Russian Public Initiative, he was described as “having proved its effectiveness”; later, all copyright and related rights objects distributed on the Internet, with the exception of photographic and other similar works, were included in its scope. . By the way, the reason for which this exception was made and maintained is very vague.
On October 12, 2015, the Federal Tax Service joined the regulators of the Internet space.
Today, access to four groups of information is limited:
The first group is the information to be banned by the decision of the executive authorities. It includes: child pornography, information on methods of acquiring or making drugs, methods of committing suicide, calls for committing suicide, information about minors affected by illegal actions, and information that violates the ban on gambling and lotteries.
Roskomnadzor makes decisions about prohibiting access to pornographic images of minors and other categories of information if it is found on media sites.
Drug previously engaged in Federal Drug Control Service, after its disbandment, these functions were transferred to the Interior Ministry. The Federal Service for Supervision of Consumer Rights Protection and Human Welfare is searching for information about suicides on the network, and the Federal Tax Service about casinos.
The second group - various information distributed in violation of the copyright to all works with the exception of photographic.
Restriction of the dissemination of such information is carried out by Roskomnadzor in a special manner, after the right holder has applied to the Moscow City Court. It is for pirate sites that repeatedly violate the law that a permanent or as it is sometimes called an “eternal” blocking is envisaged, which cannot be removed in principle. The law simply does not have a norm that would allow this to be done.
The third group includes calls for extremist activities, riots and participation in public events held with violations, access to which is restricted according to 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 is 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 boundaries of the fourth , which the courts are engaged in, are very blurred.
This includes materials included in the federal list of extremist, personal data, whose collection was carried out in violation of applicable laws and any other information that is recognized to violate the law by the district court of general jurisdiction.
In recent years, courts have taken enough decisions to say with confidence that the practice of imposing bans is taking on an ever-increasing scale and bizarre forms.
This is connected with the inconsistency, fragmentation of the introduction of new prohibitions and the fact that by creating new mechanisms for restricting access to information, the legislator did not bother to correct the already established practice.
Claims, as a rule, initiated by the prosecutor's office of the Russian Federation in defense of an indefinite number of persons are considered with the involvement of a provider or Roskomnadzor as a formal defendant, whose representatives do not appear at all at the meeting. It is unlikely that they can be blamed for this, they are not interested, and they are not obliged to act in defense of site owners.
So the courts enter into the Registry a variety of categories of information not listed in the law.
Here it is necessary to refer to the text of the law.
The norm, the dimensionless character of which is already recognized by many jurists, is interpreted even more widely.
In practice, there is a substitution of concepts. “Information for the distribution of which criminal or administrative responsibility is established” becomes “information about acts for which criminal or administrative responsibility is established”, that is, the distribution of information is somehow restricted to administrative or criminal offenses.
In the same spirit, court decisions on the prohibition of cryptocurrency websites (later the court’s decision was successfully appealed), decisions to block access to websites containing information on the possibility of illegal acquisition of education certificates, websites selling pesticides , Internet pharmacies , ready-made homework for schoolchildren , instructions for making Roman candles, fireworks , electric pans and many other judicial acts.
The negligence of the wording, reference to the “bases of morality of the citizens of Russia”, “the authority of the Russian Federation”, “propaganda” and other concepts, which are not clearly defined in any law, cause concern.
In such conditions, access to information will be banned or not, does not depend on clear criteria, but on the discretion of the district judge, who, quite possibly, does not use the Internet. And if such decisions somehow “get along” with the law, then some come into conflict with it.
It's about blocking sites selling food products subject to sanctions and travel vouchers to some foreign countries.
This is not a single case. One Prosecutor’s Office of the Saratov Region claims that 407 Internet resources have been blocked, “through which supplies of foodstuffs on the list of agricultural products, raw materials and food that are prohibited from being imported into the Russian Federation were illegally organized . ” In them, the introduction of restrictions is justified by reference to the Government’s Decrees and presidential decrees and is explained by the interests of the Russian Federation.
If you wish, you can set a limit on the dissemination of any information. But after all:
The most unpleasant thing is that the site owner learns about the blocking of his resource by the court already in the process of executing the decision, after the expiry of the appeal, and for its restoration is forced to go to the district court of a remote region of the Russian Federation. There are also frequent instances 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 extremely rarely contested, forming a stable corpus of judicial practice, which other courts, and the legislator ultimately are guided by, in developing new initiatives.
Shortest history
“Freedom of mass information is guaranteed. Censorship is prohibited ” - clause 5 of Article 29 of the Constitution of the Russian Federation.
Officials demarcate the notions of censorship and “restricting the dissemination of information” (blocking is called so in the laws), and since the Constitution allows restriction of rights and freedoms, the limitations themselves which will be discussed later, are not something illegal.
“The rights and freedoms of a person and a citizen may be limited by federal law only to the extent necessary to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of others, 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 a good reason for that, lawyers agree that in the overwhelming majority of cases it is not difficult to justify a restriction of the right to information.
“The 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, proportionate, proportionate and necessary to protect constitutional values, including rights and the legal interests of other persons are not retroactive 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 the establishment of such restrictions began with the fight against extremism. In the absence of specialized laws, the courts, which regularly received complaints from prosecutors at sites on the global network, were forced to interpret the provisions of the current legislation and interpret it in accordance with the general principles of law - a normal practice in the current situation.
The legislation provided for a general ban on the distribution of extremist materials. The Supreme Court, in its decision, established that the telecom operator providing free access to extremist materials is in fact their distributor, and upon request he 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 other acts. In the Russian legislation, such categories as “website on the Internet”, “website page on the Internet”, “domain name”, “network address”, “website owner” and “hosting provider” have appeared.
The law provided for the creation of a “Unified Register of Domain Names, Website Indexes on the Internet and Network Addresses that allow identification of websites on the Internet containing information that is prohibited in the Russian Federation.”
The administration of this structure was entrusted to the Federal Service for Supervision in the Sphere of Telecommunications, Information Technologies and Mass Communications - Roskomnadzor.
The nuances of the procedure for inclusion in the register of the network address were determined by the temporary regulations of 01.11.2012 , which is valid in its original form to this day.
An Internet resource that has entered the Roskomnadzor Register is usually not immediately blocked. Roskomnadzor must inform the hosting provider, and the latter, in turn, will convince the site owner to remove content that violates the law or do it himself. 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 of the Russian Federation for Drug Control, the Federal Service for Supervision of Consumer Rights Protection and Human Welfare were authorized to enter the site register. On December 28, 2013, the prosecutor's office in the person of the Prosecutor General of the Russian Federation and his deputies joined them.
Russia's accession to the World Trade Organization demanded the fight against violations in the field of intellectual property, and here the registry turned out to be most welcome.
On July 2, 2013, the so-called “Anti-Piracy Law” was passed, which defended audiovisual works. Despite the wide resonance and the one hundred thousandth petition on the website of the Russian Public Initiative, he was described as “having proved its effectiveness”; later, all copyright and related rights objects distributed on the Internet, with the exception of photographic and other similar works, were included in its scope. . By the way, the reason for which this exception was made and maintained is very vague.
On October 12, 2015, the Federal Tax Service joined the regulators of the Internet space.
Laying out on the shelves
Today, access to four groups of information is limited:
The first group is the information to be banned by the decision of the executive authorities. It includes: child pornography, information on methods of acquiring or making drugs, methods of committing suicide, calls for committing suicide, information about minors affected by illegal actions, and information that violates the ban on gambling and lotteries.
Roskomnadzor makes decisions about prohibiting access to pornographic images of minors and other categories of information if it is found on media sites.
Drug previously engaged in Federal Drug Control Service, after its disbandment, these functions were transferred to the Interior Ministry. The Federal Service for Supervision of Consumer Rights Protection and Human Welfare is searching for information about suicides on the network, and the Federal Tax Service about casinos.
The second group - various information distributed in violation of the copyright to all works with the exception of photographic.
Restriction of the dissemination of such information is carried out by Roskomnadzor in a special manner, after the right holder has applied to the Moscow City Court. It is for pirate sites that repeatedly violate the law that a permanent or as it is sometimes called an “eternal” blocking is envisaged, which cannot be removed in principle. The law simply does not have a norm that would allow this to be done.
The third group includes calls for extremist activities, riots and participation in public events held with violations, access to which is restricted according to 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 is 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 boundaries of the fourth , which the courts are engaged in, are very blurred.
This includes materials included in the federal list of extremist, personal data, whose collection was carried out in violation of applicable laws and any other information that is recognized to violate the law by the district court of general jurisdiction.
In recent years, courts have taken enough decisions to say with confidence that the practice of imposing bans is taking on an ever-increasing scale and bizarre forms.
This is connected with the inconsistency, fragmentation of the introduction of new prohibitions and the fact that by creating new mechanisms for restricting access to information, the legislator did not bother to correct the already established practice.
Theater of the Absurd
Claims, as a rule, initiated by the prosecutor's office of the Russian Federation in defense of an indefinite number of persons are considered with the involvement of a provider or Roskomnadzor as a formal defendant, whose representatives do not appear at all at the meeting. It is unlikely that they can be blamed for this, they are not interested, and they are not obliged to act in defense of site owners.
So the courts enter into the Registry a variety of categories of information not listed in the law.
Here it is necessary to refer to the text of the law.
“ The grounds for inclusion in the register [network addresses] are: a court decision that has entered into legal force on the recognition of information disseminated through the Internet, information whose dissemination in the Russian Federation is prohibited ” - Part 2 of clause 5 of Article 15.1. Federal Law of 27.07.2006 N 149- On Information, Information Technologies and Information Protection.
The norm, the dimensionless character of which is already recognized by many jurists, is interpreted even more widely.
“ Article 9 of Federal Law No. 149- 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, ensure the defense of the country and the security of the state. Thus, the above-mentioned legal norms prohibit the dissemination of information on tax evasion methods in their interrelations. ” - Decision on Case 2-2442 / 2014 ~ M-2838/2014 Oktyabrsky District Court of Stavropol .
In practice, there is a substitution of concepts. “Information for the distribution of which criminal or administrative responsibility is established” becomes “information about acts for which criminal or administrative responsibility is established”, that is, the distribution of information is somehow restricted to administrative or criminal offenses.
“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 in their relationship provide that the dissemination of information related to the propaganda of receiving and giving a bribe cannot be recognized as legal. This information is information whose distribution in Russia is prohibited. Therefore, the requirements of the prosecutor are subject to satisfaction ” - 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 number 2-536 / 2015 Kalininsky District Court. Tyumen .
In the same spirit, court decisions on the prohibition of cryptocurrency websites (later the court’s decision was successfully appealed), decisions to block access to websites containing information on the possibility of illegal acquisition of education certificates, websites selling pesticides , Internet pharmacies , ready-made homework for schoolchildren , instructions for making Roman candles, fireworks , electric pans and many other judicial acts.
“... the content of the site contradicts the principles of humanism, morality, has a negative impact on the moral, spiritual, mental and physical development of citizens, including minors” - Decision № 2-2060 / 2016 2-2060 / 2016 ~ M-1871/2016 M- 1871/2016 of June 6, 2016. Oktyabrsky District Court of Saransk in case No. 2-2060 / 2016 .
The negligence of the wording, reference to the “bases of morality of the citizens of Russia”, “the authority of the Russian Federation”, “propaganda” and other concepts, which are not clearly defined in any law, cause concern.
“To make to the Register“ information that propagates railroad transport in a prohibited way, on parts of the rolling stock that are not intended for passage ... and calling for committing unlawful actions that may cause harm to the lives and health of citizens, including minors ” - Decision on the case No. 2-957 / 2015 ~ M-171/2015 of 02.02.2015 Zamoskvoretsky District Court of Moscow.
In such conditions, access to information will be banned or not, does not depend on clear criteria, but on the discretion of the district judge, who, quite possibly, does not use the Internet. And if such decisions somehow “get along” with the law, then some come into conflict with it.
It's about blocking sites selling food products subject to sanctions and travel vouchers 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 by methods of protecting 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, prohibited from being imported into the Russian Federation, leads to the 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 freedoms of its citizens ” - Decision on the case of 2-1758 / 2015 ~ M-1812/2015 of October 30, 2015 Belorechenskiy District Court of Krasnodar Territory.
This is not a single case. One Prosecutor’s Office of the Saratov Region claims that 407 Internet resources have been blocked, “through which supplies of foodstuffs on the list of agricultural products, raw materials and food that are prohibited from being imported into the Russian Federation were illegally organized . ” In them, the introduction of restrictions is justified by reference to the Government’s Decrees and presidential decrees and is explained by the interests of the Russian Federation.
"The information published on the pages of 23 Internet sites, in terms of sales by tour operators and travel agents to citizens of the Russian Federation of a tourist product involving visits to the territory of the Turkish Republic, was recognized as illegal and violating the rights of consumers to receive necessary and reliable information about the service sold and is prohibited for distribution to the territory Of the Russian Federation ” - Decision of the Ostankinsky District Court of 04/27/2016 under the claim of Rospotrebnadzor.
If you wish, you can set a limit on the dissemination 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:
... imposing restrictions on access to information only by federal laws " - clause 2 of Article 3 of the Federal Law of 27.07.2006 N 149- (as amended on 07.29.2017)" On Information, Information Technologies and Information Protection ".
The most unpleasant thing is that the site owner learns about the blocking of his resource by the court already in the process of executing the decision, after the expiry of the appeal, and for its restoration is forced to go to the district court of a remote region of the Russian Federation. There are also frequent instances 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 extremely rarely contested, forming a stable corpus of judicial practice, which other courts, and the legislator ultimately are guided by, in developing new initiatives.
Source: https://habr.com/ru/post/373705/
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