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LEGISLATION

Federal Law No. 264-FZ, Amending the Federal Law “On Information, Information Technologies, and Data Protection” and Articles 29 and 402 of the Civil Procedural Code of the Russian Federation (aka Right to be Forgotten Law), July 13, 2015 [(1) The law imposes an obligation on search engines that disseminate advertisements targeted at consumers located in Russia to remove search results listing information on individuals where such information is unlawfully disseminated, untrustworthy, outdated, or irrelevant. (2) The Law includes exemptions where a search engine does not have to comply – (i) information on events reporting a crime where the limitation period for criminal liability has not expired; as well as (ii) crimes committed by an individual where their conviction record has not been erased]. Federal Law No. 364-FZ, on Amending Federal Law “On Information, Information Technologies, and Data Protection” and Civil Procedural Code of the Russian Federation (aka “Anti-Piracy Law”), November 24, 2014 [(1) The law specified and extended the application of judicial and administrative enforcement mechanisms, earlier introduced by Federal Law No.187-FZ , from movies to all copyright objects, except photographic works and works obtained by processes similar to photography. (2) The law introduced a procedure for “perpetual ban” in relation to sites involved in “repeated” IP infringements, with no right of restatement. (3) The law also introduced a comprehensive notice and take down process that a right holder may, but is not required to, follow before commencing court proceedings. Site owner can elect not to remove infringing content, but in this case must notify the right holder and present respective objections.] Resolution of the Government of the Russian Federation, July 31,2014 (the regulation for identified access to public WiFi). [This resolution was adopted pursuant to the anti-terrorism package of bills and (1) establishes that ISPs should identify Internet users, by means of identity documents (such as passport); (2) ISPs should identify terminal equipment by determining the unique hardware identifier of the data network; (3) all legal entities in Russia are required to provide ISPs monthly with the list of the individuals that connected to the Internet using their network.] Federal Law No. 242-FZ, on Amending Certain Legislative Acts of the Russian Federation as to the Clarification of the Processing of Personal Data in Information and Telecommunications Networks, July 21, 2014 [(1) The law that came into effect on September 1, 2015. It requires that the processing of personal data of Russian citizens be conducted with the use of servers located in Russia. Operators that process personal data of Russian citizens have to notify Roscomnadzor of the location of their servers where such personal data is stored.  (2) The Law establishes a Register of Infringers of Rights of Personal Data Subjects. Internet addresses of operators of personal data that do not comply with the requirements under this law can be added to this register and subsequently blocked. (3) Roscomnadzor has publicly confirmed that the law will be applied to foreign companies too, as long as they are involved in the processing of personal data of Russian citizens.] Federal Law No. 97-FZ, on Amending Federal Law “On Information, Information Technologies and Protection of Information” and Other Legislative Acts of the Russian Federation Concerning Putting in Order Information Exchange Using Information and Telecommunication Networks, May 5, 2014 (aka "Bloggers Law") (1) The law requires that bloggers (owners of sites with more than 3000 daily visitors)  refrain from using their blog for illegal activities, ensure correctness of published information, disclose their contact details, and comply with all applicable laws (electoral, mass media, privacy, defamation etc.). (2) Roscomnadzor is authorized to maintain a register of bloggers and request from hosting providers, bloggers and any 3rd parties any information that is required for the purpose of maintaining the register.  (3) The law also introduces a concept of “organizers of distribution of information” (ODI), which are defined as those who “enable the receipt, transmission, delivery and/or processing of electronic messages of Internet users.” The definition is quite broad and may well apply to all types of intermediaries. (4) ODIs are required to notify Roscomnadzor before commencing the provision of services, retain and store in Russia certain user data for 6 months, disclose information to law enforcement authorities, and at the request of LEAs install wiretapping equipment. In addition to penalties for non-compliance, Roscomnadzor may also initiate the blocking of relevant ODI’s service or site.] Federal Law No. 433-FZ, December, 20, 2013 and Federal Law No. 274-FZ, July, 21, 2014 on Amendments to Criminal code of the Russian Federation (setting criminal liability for calls for separatism made in the Internet) [These laws establish criminal liability for public calls for actions aimed at violating the territorial integrity of the Russian Federation. If such kind of call is made in the global network the author can be punished by compulsory works up to 480 hours or imprisonment for the term up to 5 years with deprivation of the right to occupy certain positions or engage in certain activities for a term up to three years.] Federal Law No. 398-FZ, on Amending Federal Law on Information, Information Technologies and Information Protection, December 28, 2013 [(1) The Law introduces new Article 15.3 to the Law “On Information, Information Technologies and Information Protection” (see below), which sets out the conditions for blocking access to a web site that contains calls for unauthorized protest actions or extremist activities. (2) According to the Law, Roskomnadzor (Federal Service for Supervision in the Sphere of Telecommunication, Information Technologies and Mass Communications), upon receiving an order from the Prosecutor General’s Office, can request that: (i) telecom operators block access for their users to this site with an immediate effect, and (ii) hosting provider of the site notifies the site owner of the alleged violation urging to remove the content.] Federal Law No. 187-FZ, on Amending Legislative Acts of the Russian Federation Concerning the Questions of Protection of Intellectual Rights in Information and Telecommunication Networks, July 2, 2013 [(1) The law sought to strengthen the protection of motion pictures online and  introduced amendments to the Civil Code, the Civil Procedure Code, the Arbitrazh (Commercial) Procedure Code, and the Federal Law No. 149-FZ of July 27, 2006 “On Information, Information Technologies and Protection of Information.” It also introduced a general framework for intermediary liability for IP infringements (see more on art. 1253.1 of the Civil Code above). (2) Under amended art. 26 of the Civil Procedural Code, the Moscow city court, as a court of first instance, has an exclusive jurisdiction to consider cases related to violation of IP rights to motion pictures on the Internet, and can issue preliminary injunctions at the request of a right holder before a legal suit is filed. (3) Roscomnadzor is mandated to enforce such injunctions in accordance with the new article 15.2 of the Law “On Information, Information Technologies and Protection of Information” by identifying hosting providers and requesting the removal of or limiting access to infringing material. (4) If either a hosting service provider or content owner fail to take required measures, Roscomnadzor will issue an order to telecom operators to block access to an identified online service. (5) Later, in November 2014 the list of protected copyright objects under this law was expanded to cover all copyright objects (except photos). See more below on Law No. 364-FZ.] Federal Law No. 139-FZ, on the Protection of Children from Information Harmful to Their Health and Development and Other Legislative Acts of the Russian Federation (aka “Blacklist law”), July 28, 2012 [(1) Positioned as means for the protection of children from harmful content that contains information about drug usage, advocates suicide or describes suicide methods, or contain child pornography, the law created a unified register of web sites that contain such information. The register is administered by the Federal Service for Supervision in the Sphere of Telecom, Information Technologies and Mass Communications (Roscomnadzor). The law introduced a blocking mechanism of such sites (by adding a new article 15.1 to the Law “On Information, Information Technologies and Protection of Information”):

  1. Upon identifying a site with illegal content, Roskomnadzor informs the website's owner and a respective hosting provider;
  2. If the content is not removed within three days, the website is then added to the register, which triggers a requirement for all Russian telecom operators to block an access to it;
  3. The law also sets forth a procedure for reinstating access to a site that later complied with Roscomnadzor’s request and removed illegal content.  (2) Later, Federal Law No. 398-FZ “On Amending the Federal Law “On Information, Information Technologies and Information Protection” of December 28, 2013 introduced a somewhat similar blocking algorithm in relation to sites with information containing calls for mass riots or extremist activities. (3) As of today, the enforcement of these laws has demonstrated that they have extraterritorial reach and are applied both to local and foreign web sites.] Part Four of the Civil Code of the Russian Federation, December 18, 2006 [(1) Article 1253.1 of the Civil Code, introduced by Federal Law No. 187-FZ of July 2, 2013, defines “information intermediary” as “an entity that carries out the transmission of content through information and telecommunication networks, including on the Internet”, “an entity that enables the publication of content, or information required to access such content through information and telecommunication networks”, or “an entity that enables access to the content  through such information and telecommunication networks”. It is still to be seen whether information location tools, i.e. search engines, fall under the statutory definition of “information intermediary” too.  (2) Information intermediaries are exempted from liability for IP infringement subject to the following conditions:

Administrative RegulationsRegulatory Entity: Roskomnadzor (Federal Service for Supervision in the Sphere of Telecommunication, Information Technologies and Mass Communications) [The Roskomnadzor is an administrative body competent to request telecoms operators to block access to website featuring content that violate miscellaneous pieces of legislation (see above) and competent to keep a special registry ("blacklist") where to add website that violate the law.]

BILLS AND PENDING PROPOSALS[There are currently no known new legislative proposals on the issue of intermediary liability.]

DECISIONS

Superior CourtsSupreme Court of the Russian Federation, Deputy State Prosecutor for the Pskov Region v. Rostelecom, October 9, 2012[website blocking, access provider, access to illegal information, online gambling] [The Deputy State Prosecutor for the Pskov Region of Russia requested that Rostelecom, a telecom provider, block its clients from accessing Internet gambling websites. The Pskov City Court rejected the prosecutor’s claim and ruled that providing access to Internet gambling sites is not prohibited (even though Internet gambling itself is prohibited). The prosecutor appealed. In a landmark and a very worrying ruling, the Supreme Court ruled that the provision of access to illegal information is equal to its dissemination and thus should be prohibited. As a result, Rostelecom should block its users from accessing such information.]  Supreme Arbitration Court of the Russian Federation, Kontent I Pravo v. Masterhost, December 23, 2008 [In this case, Kontent I Pravo claimed that its rights to copyright objects, uploaded by third parties on the website that was hosted on servers provided by Masterhost, were violated. Masterhost argued that it only provided web hosting services and thus should not be liable for mere storage and transmission of the content. The Supreme Court ruled in favor of Masterhost reasoning that a provider should not be liable if it does not initiate the transmission or modify the content.]

CONTRIBUTORSSarkis DarbinyanEmail: sardarbinyan at gmail.com[personal page] Sergei HovyadinovEmail: sergeih at stanford.edu [personal page]

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