Andrei Richter, Director of the Office of the Representative on Freedom of the Media of the OSCE, analyzes Russian case law regarding defamation online. Richter will be speaking at Penn Law on October 30th on The OSCE and Media Law and Practice in Russia.
The position expressed by the 2010 Supreme Court of the Russian Federation in its Resolution “On the Practice of Application by the Courts of the Law of the Russian Federation ‘On the Mass Media’” indicates that editors of Internet media sites should not be held liable for comments posted by readers and for content of a defaming nature (let us call this Rule 1). As seen in two similar appellate determinations passed in June 2012 Chuvash Republic Supreme Court, application of this resolution reflects international law standards regarding the freedom to hold one’s opinion and the freedom to receive and impart information and ideas. Courts, however, vary in their exact interpretation of the resolution, leading to some fragmentation amongst Russian courts.
In June 2012 the Chuvash Republic Supreme Court overturned the Cheboksary District Court’s decision regarding suits brought in defence of honor and dignity in connection to the dissemination of statements on an Internet site. The district court decided that the owner of the Internet portal nasvyazi.ru was responsible for disseminating defamatory statements found in comments on his site. The court ruled that he was obliged to place an apology on the site and compensate the plaintiffs for court fees and moral harm caused by the statements.
The decision was appealed to the Chuvash Supreme Court on the grounds that the site owner only provided an opportunity for people to publish their opinion and access information published by other users. The appeal stated that as an intermediary ensuring the work of the Internet, a site owner, in compliance with the legal position outlined in the June 1, 2011 “Joint Declaration on Freedom of Opinion and the Internet,” cannot bear responsibility for disseminated information.
In its decisions, the Chuvash Supreme Court indicated that the right to freely express one’s opinion and receive and impart information is provided in Article 10 of the Convention on the Protection of Human Rights and Fundamental Freedoms, and Article 19 of the International Covenant on Civil and Political Rights. The Court stated that forums provide users with the opportunity to access and impart information, and “[this] principle [extends] to the Internet, as well as all other means of communications.”
This is further supported by “Joint Declaration on Freedom of Opinion and the Internet,” which outlines the principles of liability for subjects acting in the capacity of intermediaries. In particular, par. 2(a) of the Declaration states:
No one who simply provides technical Internet services such as providing access, or searching for, or transmission or caching of information, should be liable for content generated by others, which is disseminated using those services, as long as they do not specifically intervene in that content or refuse to obey a court order to remove that content, where they have the capacity to do so (‘mere conduit principle’).
At a minimum, these “intermediaries” are not obliged to perform monitoring of the content generated by users and must not apply rules of extrajudicial removal of content which does not guarantee the necessary protection of freedom of expression.
The Chuvash Supreme Court noted that, it its decisions, the district court indicated that the Joint Declaration is not a binding norm of law that must be applied. Without objecting to this position, the Supreme Court nevertheless indicated that “the imposition of liability on the site owner is possible only on the grounds provided by common norms of civil law.” Even so, common principles, including international principles, in resolving the issue of non-mass media site owners’ liability cannot fundamentally diverge from the principles of liability for owners of sites that are mass media outlets. This is also borne out by the concurrence of legal positions in the declaration and the Resolution of the Supreme Court Plenary of 15 June 2010, “On the Practice of Application by the Courts of the Law of the Russian Federation ‘On the Mass Media’.”
The Chuvash Supreme Court also noted that in making the decision to impose liability for failure to remove content from the site, the district court did not cite any legal norms obliging site owners to remove users’ defamatory statements. When the owner was issued demands to remove the posts, there was no court decision confirming the defamatory and false nature of the comments themselves. The Chuvash Supreme Court’s final decision only obliged the owner to post a disclaimer on the site.
Other court decisions offer a contrary interpretation of Rule 1, imposing liability on the site owner if he or she had the opportunity to edit and check the information posted in the readers’ comments of another forum, but did not do so. This position was confirmed by a decision of the Higher Arbitration (Supreme Economic) Court. In this case, the site owner (administrator) was found liable for anonymous statements on the site that violated the rights of third parties, since the owner was deemed a person “who provides the relevant conditions and technical capacities (or gives consent to the provision of such conditions) for visitors of his Internet site.” The site owner in this case needed to compensate the plaintiff with 100,000 rubles towards reputation damage.
Some courts believe that Rule 1 also applies to printed periodicals which reprint commentary on their pages from Internet forum readers, even if this is commentary from the forum of another media outlet. Moreover, it is unfair to demand that the editors check the statements disseminated: after all, they do not have a “real opportunity” to establish even the identity of the authors (who in the case reviewed by the court used a nickname).
With discrepancies between courts’ interpretations of Rule 1, the Supreme Court is reviewing the possibility of adopting new recommendations for courts, building on its 2010 Resolution.
(Adapted Extracts from: Richter, A. Comments on the Internet Media Forum: Law and Practice in Russia / Ed. by C. Möller and M. Stone. / 2013 Social Media Guidebook. Vienna: OSCE Representative on Freedom of the Media, 2013 – 153 p. References to all mentioned court cases and documents are provided in the book. URL: http://www.osce.org/fom/99563 )
Produced by the United Nations Special Rapporteur on Freedom of Opinion and Expression; the Representative on Freedom of the Media of the Organization for Security and Cooperation in Europe; the Special Rapporteur on Freedom of Expression of the Organization of American States and the Special Rapporteur on Freedom of Expression and Access to Information of the African Commission on Human and People’s Rights.