Amicus Curiae Brief to the Russian Constitutional Court on the Right to be Forgotten

Abstract

This expert opinion was submitted to Russia’s Constitutional Court in case No. 1244/15-01/2019 in case referenced as 'By appeal of attorney-at-law Sarkis Darbinyan acting on behalf of SOVA Center for Information and Analysis (SOVA) with respect to its challenge of Law No. 149-FZ About regulating the right to be forgotten'. The case concerns so-called ‘right to be forgotten’ in context of articles on hate crimes that have been removed from Google search results. In 2016, a ‘Right to be Forgotten’ Law entered into force in Russia that restricts free flow of information online by enabling Russian citizens to request that search engines delist links about them. The only requirement is that information is “inaccurate and outdated” or “has lost meaning to applicant due to subsequent events.” The law provides a limited exception for information relating to criminal offences, where conviction has not been quashed or removed from official record. 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 Yandex to remove links to articles concerning a Swiss investigation into money laundering that led to a temporary freeze on her bank accounts totalling $61 million, which it said defamed dignity and business reputation of former minister of agriculture Elena Skrynik. That same year, a St Petersburg court ordered Russian search engine Yandex to remove search results regarding businessman Ilya Kligman that linked him with allegations of corruption because they did not result in a criminal conviction. This law was challenged before Constitutional Court of Russian Federation by SOVA Center for Information and Analysis, a Moscow-based non-profit that publishes news releases on news related to radical nationalism, hate crime, and counter-responses; and maintains a public database that records incidents of hate crimes and convictions for extremism. As part of this news coverage, SOVA published two articles in 2006 and 2008 about convictions for hate crimes. The first incident covered convictions of Yuri Shchebyetuk and Alexei Ershov for beating an Angolan national. The second related to conviction of 8 individuals for supporting neo-Nazism, including Yuri Shchebyetuk. In 2016, Google notified SOVA that it had received a request to de-list those two articles. Google did not disclose source of request, since search engines are forbidden from disclosing this information. ARTICLE 19 submitted an expert opinion to support SOVA’s challenge of law. ARTICLE 19’s brief argues that law violates Russian Federation’s obligation to comply with international and European freedom of expression standards for following reasons: - The law fails to provide basic safeguards necessary to protect right to freedom of expression, particularly exceptions for personal information that is in public interest and/or concerns public figures. - Furthermore, law lacks critical procedural safeguards, including right of linked-to sites to be notified that a request for delisting has been made regarding their content, and a requirement that search engines publish transparency reports containing sufficiently detailed information about nature, volume and outcome of requests. - Finally, law is overly broad because it requires search engines to potentially take action in relation to any domain name on Internet, rather than limiting its scope to .ru domain names.