Responsibilities of search engines: how to “edit” the search in Russia

For a long time, the search for information on the Internet was not directly regulated by the 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), rightholders and the state. The operators of search engines, in turn, have responsibilities related to the formation of search results not only in accordance with their own algorithms and user requests, but also taking into account the new regulatory rules.

Right to oblivion

“The Right to Oblivion” is a legal product of the 21st century, which was invented not so long ago in Europe as a tool to protect the privacy of a person. A start was made when in 2014 the European Court of Justice (CJEU - Court of Justice of the European Union) in the decision in the case of Google Spain v. AEPD and MK. Gonzalez decided that people have the right to remove information about them from 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 regulating the processing of personal data, which generally allows a person to control how and why his personal data are processed, including requiring the removal or correction of data. Signor Gonzalez did not like that when he was googled, the first thing in search was an article about 20 years ago about selling his property at 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 require the search engine to remove from the search results incorrect, irrelevant or redundant information about themselves. But the court also stressed 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. From January 1, 2016, Article 10.3 of the Federal Law No. 149- “On Information, Information Technologies and Protection of Information” (hereinafter - the Law on Information) began to operate. This provision 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 legislation of the Russian Federation;
• information is unreliable;
• information is not relevant;
• the information has become meaningless to the applicant due to subsequent events or actions of the applicant.

In practice, requests for deletion of information on the right to oblivion often come from persons who have been prosecuted or suspected of engaging in illegal activities. In addition, people are trying to remove negative reviews about themselves, information of an offensive and defamatory nature, unsuccessful photos, any other personal data.

While article 10.3 of the law on information explicitly provides for the applicant's ability to appeal against the refusal of a search engine operator in a court of law, the interests of individuals “at the other end of the line” do not say anything in the law - direct distributors of information cannot dispute the exclusion of references to their sites from search results. In all its glory, such an imbalance of rights appeared in the case of the public organization Center Sova v. Google, which was considered in court in connection with the removal from Google Search of links to two news articles on the course of the neo-Nazi criminal trial from Obninsk.

As we wrote earlier, the public organization received notifications from Google that links were removed from search results pursuant to the law on the right to oblivion. At the same time, Google did not disclose the person who requested the links to be deleted, nor any specific grounds for “search stripping.” At first, the Sova Center appealed against the search engine’s actions in court, appealing to the fact that news and, in general, information about serious crimes is relevant to the public and should not be removed from the search only at the request of a private person (formerly convicted). But arbitration courts of all instances refused to satisfy the claim of a public organization, finding that the site owner does not have the right to appeal against the actions of a search engine under Article 10.3 of the law on information, and then the Sova Center decided to appeal this provision of the law to the Constitutional Court of the Russian Federation. “This is one of the reasons why we believe the rule does not comply with the Constitution. In connection, the search user-distributor of information, the latter remains powerless and has no opportunity to object to delisting, ” said Ekaterina Abashina, a lawyer at the Center for Digital Rights and RosKomSvoboda, who represented a public organization in the arbitration process. In addition, problems with the right to oblivion are caused by shifting socially significant solutions to private companies (search engine operators).

As the representatives of the search engines say , the law assigns to the operators of search engines the unusual functions of the courts or law enforcement agencies. The broad formulations of the law and the lack of mechanisms to maintain a balance of interests between various actors have led to many problems in law enforcement. Search engines are forced to consider a huge number of requests for deletion of information (according to Yandex only in the first three months of the law, the search engine received more than 3,600 requests from 1,348 people), while the majority of these requests are not subject to satisfaction (about 70%), and the rest inquiries can potentially violate the rights of distributors of information and Internet users. In this context, the position of the Constitutional Court of the Russian Federation on the right to oblivion can introduce the necessary certainty into the Russian practice of applying art. 10.3 of the law on information, to correct the existing imbalance in the rights of various subjects, as well as private and public interests (the Sova Center filed an appeal to the Constitutional Court of the Russian Federation on February 1, 2019, and is currently under preliminary consideration).

Copyright

For a long time, it was unclear to what extent search engines contribute to the distribution of illegal content on the Internet, whether search engine operators should be held responsible for the actions of violators, and if so, what. In Russia, before the introduction in 2017 of the next “anti-piracy” amendments, the right holders tried to apply various mechanisms to bring search engines to responsibility: they tried to prove a direct violation of copyright by search engines, used the provisions on liability of information intermediaries. In some cases, such attempts even end in success. But usually in such cases bringing the search operator to account for copyright infringement is not directly related to the work of the search function.

For example, in January of this year, 300,000 rubles of compensation were collected from Yandex for violating the exclusive rights to the covers of the “Hands Up” album covers posted on music.yandex.ru. However, this case did not concern the search functions of Yandex, the company acted precisely as the owner of the site, the technical intermediary between users and the persons placing content on the site.

It is important to note that search engines are not recognized by information intermediaries within the meaning of art. 1253.1 of the Civil Code. Search engines implement only technical functions, index information in accordance with certain algorithms. According to Yandex’s experts, providing access to the material or information necessary to obtain it involves obtaining and using such information, while the search engine operator does not in any way control the materials whose location is reported. This conclusion is confirmed by judicial practice.

In 2017, in one of the arbitration cases in which the company-owner wanted to oblige Yandex to remove links to web pages with illegal content, referring to the rules on information intermediaries, the courts took the side of 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 are currently available according to the index data available in the search engine database, there may be information relevant to a user-defined request. Acquaintance with information (access to it) is carried out by users directly on the indicated sites, and not on the sites of search engines, while they have access to this or that information, regardless of whether it is indexed or not by the corresponding search system. ”

However, in the same year of 2017, within the framework of the third anti-piracy law (also called “the law on mirrors”), search engine operators were required to remove links to sites that were repeatedly violated copyright or related rights from search results. Violations of exclusive rights are recorded by the Moscow City Court and after a decision is made on the claims of the right holders, it sends a judicial act for execution to Roskomnadzor. Within a day of the receipt of the Moscow City Court’s decision to permanently restrict access to certain sites, Roskomnadzor sends search engines operators the requirement to completely remove links to sites blocked forever for repeated infringement of exclusive rights to content (that is, after two decisions are made by the Moscow City Court on one same site). After that, search engines have one day to meet these requirements. Thus, search engines were actually included in the Russian anti-piracy mechanism, they had new responsibilities related to the protection of copyright and related rights on the Internet.

In 2018, after a series of cases on claims of the group of companies that are part of Gazprom-Media, against Yandex, search engines had even more responsibilities. The judicial proceedings reviewed by the Moscow City Court concerned links to illegal content on the website yandex.ru (in particular, on the Yandex.Video service). The rightholders, by way of preliminary provisional measures, demanded “to stop creating technical conditions ensuring the placement of works on the website yandex.ru". The Moscow City Court satisfied these requirements, referring to the fact that "on the website yandex.ru there is not only a search result on request, but also the object of exclusive rights. ”After Yandex failed to achieve the cancellation of the definitions of interim measures in the form of blocking the service, the search engine voluntarily removed the controversial links, and the case has been discontinued.

Against these trials, Yandex took part in the negotiations with the rights holders and agreed to sign a memorandum on the fight against piracy, involving the removal of references to illegal content out of court. Total document signed by 12 companies. From the side of Internet sites, these are “Yandex”, “Rambler Group”, “Mail.Ru Group” and “Rutube”. From the right holders - First Channel, All-Russian State Television and Radio Broadcasting Company, National Media Group, Gazprom-Media, Internet Video Association, Association of Film and Television Producers, Kinopoisk Service. The guarantor of the execution of the memorandum was Roskomnadzor. The memorandum provides for additional measures to combat illegal content in the network - the creation of a “private” registry to which copyright holders can add links to which the content is placed illegally. Roskomnadzor acts as the registry holder and verifier of the holders' applications. For removal of links from search results and from Internet services, participating companies are given 6 hours. The main purpose of the memorandum is to complicate the search for illegal content and out of court. In this case, the memorandum is valid until September 1, 2019. It is assumed that before this deadline, the relevant amendments will be made to the Russian legislation, taking into account the provisions of the memorandum.

In this context, it is worth remembering the bills that were developed in 2017 by the Ministry of Culture of the Russian Federation. The Ministry of Culture proposed, nevertheless, to unambiguously qualify the search engine operators as information intermediaries so that it could be imposed on them the obligation to stop issuing links to sites with illegal content without a court. Then the bills were rejected as having a negative regulatory impact. A negative conclusion on the bill was prepared by the 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 states that “the draft act does not provide for a mechanism for verifying the information provided, as well as a mechanism for notifying the relevant resources about the applications filed against them to the operator of the search engines. Under these conditions, there is a risk of violation of the rights of bona fide resources. ”

Despite the negative reviews, work on similar bills on “delisting” without a trial continues to this day. It is also proposed to require search engines to display sites with legal content in priority mode. However, the final text of the bill has not yet been developed. According to open sources , such a bill should appear by the beginning of September 2019.

In Russia, the regulatory algorithm for the interaction of search engine operators with government agencies and rightholders 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 speed up the delisting procedures by excluding the judiciary from content protection mechanisms on the network.

Content Filtering

In addition to the law on the right to oblivion and anti-piracy legislation, there are other burdensome regulations that require the search engine to remove information from the search results.

In 2017, Law No. 276-FZ was also passed on the state regulation of the use of anonymizers and VPNs, which significantly expanded the state’s powers to “curb” the distribution of materials prohibited in Russia. Owners of anonymizers, VPN and other proxy systems, as well as search engine operators should connect to the Roskomnadzor information system ( FGIS ). FGIS includes all prohibited Internet resources that are subject to delisting by search engine operators.

Most search engine operators operating in the Russian market met this requirement, but not all. Google refused to connect to FGIS and chose to pay a fine of 500 thousand rubles. The Federal Supervisory Committee threatened to block Google if it continued to ignore "Russian requirements for filtering search results from prohibited content." However, the prospects for such a step are very dubious. As the head of the Roskomsvoboda project, Artem Kozlyuk, said in an interview with The Insider online publication: “Blocking Google by Roskomnadzor is beating yourself.”

Speaking of Google, it is impossible not to mention the initiative of a search engine called Transparency Report. Google regularly compiles statistical reports on content removal requests, including from web searches. According to statistics, requests to remove information from a web search accounted for a little more than 20%. But do not assume that the search engine meets all the requirements for the removal of content. The chart prepared by Google clearly shows the proportion of deleted information. On average, Google satisfies about 70% of requests from the Russian authorities.

Conclusion

As can be seen, in 2016, the Russian legislator began to actively “drag out” the search engines into the mechanisms for preventing the distribution of digital content and online materials in Russia in private and public interests. For the territory of Russia, search engine operators are obliged to consider user requests for the right to oblivion, to hide illegal content from users in the interests of rights holders, as well as to protect users from prohibited information. It remains to evaluate the effectiveness and fairness of the created mechanisms by the users themselves ...