By Paige Morrow , Senior Legal Officer, ARTICLE 19
ARTICLE 19 has submitted an expert opinion to Russia’s Constitutional Court on an important case challenging Russia’s so-called ‘right to be forgotten’ law. The case arose from a request to remove Google search results to articles about convictions for hate crimes and extremism.
Russia’s Right to be Forgotten Law
In 2016, a ‘Right to be Forgotten’ Law entered into force in Russia, thus restricting the free flow of information online by enabling Russian citizens to request that search engines delist links about them. The only requirement is that the information is “inaccurate and out-dated” or “has lost meaning to the applicant due to subsequent events”. The law provides a limited exception for information relating to criminal offences, where the conviction has not been quashed or removed from the official record, however it does not include any carve-out for information that is in the public interest or related to a public figure.
The law has allegedly been used by Russian public officials to remove online content addressing their misconduct and/or corruption. In 2017, a court ordered Russian search engine Yandex to remove links to articles concerning a Swiss investigation into money laundering, by former minister of agriculture Elena Skrynik, that led to a temporary freeze on her bank accounts totalling $61 million. It was stated that this content defamed Skrynik’s dignity and business reputation. That same year, a St Petersburg court ordered Yandex to remove search results regarding businessman Ilya Kligman that linked him with allegations of corruption, on the ground that no criminal conviction resulted from these allegations.
SOVA Center for Information and Analysis is a Moscow-based non-profit organization founded in October 2002 to conduct and disseminate research on issues including political extremism, nationalism and xenophobia, the relationship between religion and politics, and human rights. SOVA regularly publishes news releases relating to radical nationalism, hate crime, and counter-responses. It also maintains a publicly accessible database recording incidents of hate crimes and convictions for ‘extremism’.
As part of its news coverage, SOVA published two articles, in 2006 and 2008, on hate crime convictions: one on the convictions of Yuri Shchebyetuk and Alexei Ershov for beating an Angolan national, and the other on the conviction of 8 individuals for supporting neo-Nazism, including Yuri Shchebyetuk.
In March 2016, SOVA received notification from Google that these articles were being delisted from its search engine due to a user’s request pursuant to Russia’s Right to be Forgotten Law. This law allows, but does not require, the search engine to notify the website that is the subject of the request. However, the search engine must not provide the name of the person who made the request. Here, we can infer that it was Yuri Schebyetuk, since he was the only individual named in both articles.
SOVA petitioned the court asking that the law be declared unconstitutional, a request which was denied by the lower courts. SOVA subsequently appealed to the Constitutional Court and approached ARTICLE 19 for an expert opinion to support SOVA’s legal challenge.
The right to be ‘de-referenced’: A real right?
The existence of the ‘right to be dereferenced’ has been derived by domestic and supranational courts on the basis of data protection law, personality rights, defamation law, and/or the right to control one’s image.
There are certain recognised aspects of the right to be forgotten in criminal and civil law, including the expunging of criminal records, and statutes of limitations. However, international standards suggest that a specific law on the right to be forgotten is not only unnecessary, but that it may also unduly restrict freedom of expression. While there may be legitimate instances where an individual will seek to remove access to information about them, which is of a private nature (e.g. bank details, medical information, or phone number), defamatory or libellous, individuals can rely on existing remedies. In most cases, individuals should apply directly to the courts, which are best placed to decide whether the information should remain available.
The ‘right to de-referencing’ was initially recognised by the Court of Justice of the European Union (CJEU) in Case C-131/12 Google Spain, which held that data protection principles apply to the publication search results of search engines. The CJEU held that European citizens should be able to ask search engines to remove links to “inadequate, irrelevant or no longer relevant, or excessive” content. There is an exception to not delist pages “for particular reasons, such as the role played by the data subject in public life”, such that the data processing is justified by “the preponderant interest of the general public in having, on account of inclusion in the list of results, access to the information in question”. While the content itself remains online, it cannot be found through online searches of the individual’s name.
The new case before the CJEU, Google v CNIL, asks the Court to clarify whether a court or data regulator should require a search engine to de-list websites only in the country where it has jurisdiction or across the entire world. The Advocate General, recognizing the geographical limitations of the Court’s jurisdiction, has proposed that: “the Court should limit the scope of the de-referencing that search engine operators are required to carry out to the EU”.
The right to be forgotten has now been codified in Article 17 of the General Data Protection Regulation (GDPR), which recognises a number of exceptions, including for information that is necessary “for exercising the right of freedom of expression and information”.
The key issue is that while the EU version contains a strong exception for information that is in the public interest or that relates to public figures (who should have a limited expectation of privacy), there is no such exemption in the Russian law, thus allowing public figures to request suppression of information about them, which may be important for people to know.
Legal Arguments – Freedom of expression in Russia
ARTICLE 19 argued in its legal opinion that the ‘Right to be Forgotten’ law violates Russia’s international legal obligations. While respect for human rights has dramatically declined under Putin’s presidency, freedom of expression is (theoretically) protected by Article 29 of the Russian Constitution. Moreover, Russia is a State Party to the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR), both of which guarantee freedom of expression in Article 19 and Article 10 respectively.
Restrictions are disproportionate to aim pursued
Under international law, the right to freedom of expression is not an absolute right and may be legitimately restricted by the State in certain circumstances. A three-part test identifies the conditions against which any proposed restriction must be scrutinised:
- The restriction must be provided by law: it must have a basis in law, which is publicly available and accessible, and formulated with sufficient precision to enable citizens to regulate their conduct accordingly.
- The restriction must pursue a legitimate aim, exhaustively enumerated in Article 10, para 2 of the ECHR and Article 19, para 3 of the ICCPR, namely: national security, territorial integrity or public safety, the prevention of disorder or crime, the protection of health or morals, and/or the protection of the reputation or rights of others. Article 10, para 2 of the ECHR also states that preventing the disclosure of information received in confidence, or maintaining the authority and impartiality of the judiciary, is a legitimate aim.
- The restriction must be necessary in a democratic society, meaning that it must be necessary and proportional. This entails an assessment of whether the proposed limitation satisfies a “pressing social need” and whether the measure is the least restrictive way to achieve the aim.
ARTICLE 19 submitted, in its opinion, that the Law is disproportionate to the aim pursued for the following key reasons:
- Whether personal information is ‘relevant’ is an unduly broad yardstick against which to decide whether information should remain genuinely accessible. In fact, it assumes that personal information is only relevant in the eye of the person making the ‘right to be forgotten’ application. However, information about a person may be both personal and public – it may be relevant to the person seeking the information, and may be relevant insofar as it concerns a matter of public interest. In other words, there is no such thing as an objective conception of relevance. In requiring search engines to determine the ‘relevance’ of information, lawmakers and courts impose on search engines an impossible task.
- The Law entirely fails to make reference to the right to freedom of expression as an important right that must be balanced with the right to privacy and protection of personal data during the examination of ‘right to be forgotten’ requests.
- The Law fails to include an overarching presumption that information already legitimately in the public domain shall remain in the public domain except where it has demonstrably caused serious harm to the person concerned; and a broad exception for personal information in the public interest and/or concerning public figures.
- The exception that search engines are not required to delist links concerning allegations of criminality or information about convictions, which have not been expunged or quashed, is too narrow to cover cases where the criminal record of the concerned individual has been expunged but there remains a clear public interest in having access to the information. In the present instance, the complainant does not know on what basis the request for de-listing was made. However, based on the content of the webpages at issue, it appears that an individual whose criminal convictions for hate crimes were mentioned in both pages may have made the request.
- The action required by the search engine is unclear, specifically whether search engines are required to remove the links at issue entirely or whether they must delist search results generated on the basis of a person’s name. ARTICLE 19 believes that any law providing for a “right to be forgotten” should be limited to a right to de-list search results generated on the basis of a search for a person’s name
The Law lacks important procedural safeguards
The Law is also devoid of important procedural safeguards:
- the right of linked-to sites to be notified that a ‘right to be forgotten’ request has been made in respect of their content; and
- a requirement that search engines publish transparency reports containing sufficiently detailed info about the nature, volume and outcome of ‘right to be forgotten requests’.
At a minimum, the Law should provide a right for linked-to sites to be notified and given an opportunity to intervene in cases being challenged by search engines before the courts. Further, the Law should require search engines to publish sufficiently detailed information about the nature, volume and outcome of de-listing requests to ensure accountability in the application of the law.
Applicability of the Law and State sovereignty
The Law is particularly far-reaching since it will apply to any search operator “who places advertisements on the Internet network aimed at attracting the attention of consumers located on the territory of the Russian Federation”. The Law is therefore clearly intended to apply beyond Russian search engines to Google and other search engine operators that are based – and may collect the personal data of Russian nationals from – outside the Russian Federation. Instead, the applicability of the Law should be limited to operators having a branch/subsidiary established in the Russian Federation.
In this case, SOVA operates a website under .ru, the Internet country code top-level domain (ccTLD) for the Russian Federation. However, it may be accessed by Russian-speaking users from outside the geographic territory of the Russian Federation. Furthermore, SOVA’s website is available in both Russian and English, meaning that Internet users worldwide are able to access its content.
By requiring search engines to alter the contents of search results available to users that could potentially be located in other countries, thereby impacting their freedom of the expression, the Law also violates the principle of State sovereignty.
The principles of comity and reciprocity suggest that the Law should not be used to impose global restrictions on freedom of expression through ad hoc remedies grounded exclusively in domestic law, without regard to international norms, laws or policies. Otherwise, any country could potentially assert jurisdiction over a search engine in order to restrict access to information all over the world.
The Russian Constitutional Court is currently deliberating on this important case for freedom of expression and access to information online, amid a worsening environment for civic space and online freedoms in Russia, with a decision expected later in 2019.
Paige Morrow may be contacted by email at firstname.lastname@example.org or Twitter: @paigemorrowlaw.
ARTICLE 19: Global Campaign for Free Expression (ARTICLE 19), an independent human rights organisation that works around the world to protect and promote the rights to freedom of expression and information. ARTICLE 19 has produced a number of standard-setting documents and policy briefs based on international and comparative law and best practice on issues concerning the rights to freedom of expression. It also regularly intervenes in domestic and regional human rights court cases, and comments on legislative proposals, as well as existing laws that affect the right to freedom of expression.