By Mikhail Turetsky, Ksenia Koroleva and Lore Leitner
On July 13, 2015, the Russian President signed Federal Law No. 264-FZ (the Law), which introduced a range of amendments into Russian legislation (the Amendments). In particular, the principle of the “right to be forgotten”, a concept not previously recognized under Russian law came into effect on January 1, 2016.
The Law introduced the right for individuals to request that search engine operators delete links to certain information relating to the individuals from searches run on the individuals’ names or surnames. The Law applies only to individuals and does not mention legal entities.
For example, an individual may approach an Internet search engine operator that targets advertisements at Russian citizens with a request to delete links to any information relating to such an individual, which is:
- distributed in violation of Russian legislation
- irrelevant to the individual because of subsequent events or his/her actions (with the exception of information about crimes for which prosecution terms have not yet expired or information about convictions that have not been released or cancelled).
These provisions are very broad and at the moment there is no official guidance. It is clear, however, that the Law imposes an additional obligation on search engine operators to decide whether the information they distribute breaches Russian legislation.
The Law applies to all domestic and foreign search engines, except for search engines operated for the purposes of exercising public authority. “Search engine” is defined broadly under the Law, as an “information system which does research at the request of Internet users with respect to certain information and provides access to websites which contain the requested information.” This effectively brings any website which has a search tool generating links to other websites under the definition and means that the website will be required to deal with requests for deletion of the relevant search results containing links to certain data of individuals.
Pursuant to the Law, an individual is not required to obtain a court decision prior to approaching a search engine operator. The search engine operator must delete links to the required information based on the individual’s request. The request shall contain:
(i) name, passport and contact (telephone number, fax, email address, mailing address) details of the applicant
(ii) the list of information relating to the applicant whose deletion is requested
(iii) links to web pages where the information in question is published
(iv) grounds for deletion of links
(v) the applicant’s consent for processing of his/her personal data.
If the request is incomplete, inaccurate or contains mistakes, the search engine operator may require the applicant to amend the request. In this case the applicant will have ten business days to make all appropriate amendments. The search engine operator may only ask the individual to amend the request once.
The search engine operator is required to cease showing links to any such data within ten business days upon receipt of the request or amended request. The applicant must be notified of the search engine operator’s decision in the same form in which the request was filed, meaning that if the applicant files a written request, the search engine operator will also have to notify the applicant about its decision in writing. The search engine operator may reject the applicant’s request but must provide the applicant with the grounds for refusal, which can be challenged by the applicant in court.
The applicant can file a claim to the court for the deletion of information relating to the applicant either at the applicant’s location, or at the search engine operator’s location. The search engine operator is at all times required to maintain confidentiality regarding the request from the individual and its contents, unless Russian federal laws require otherwise.
If the search engine operator refuses to satisfy the individual’s request and such refusal is challenged in court, non-compliance by the search engine operator with the relevant court order may result in an administrative fine of up to RUB 800,000 (currently approx. US$12,000) for an initial failure to respond to the order and up to RUB 1,000,000 (currently approx. US$16,000) for a subsequent failure.
Effect of the Amendments
These provisions may have a considerable impact on global organizations operating in Russia.
The broad definition of “search engine” means that the Amendments could have significant practical implications not only for large search engine operators, such as Yandex or Google (claims against Yandex and Google are already being examined by the Russian courts), but also for any websites which allow searching through the content of other websites. An individual requesting the search engine operator delete the information is not required to prove anything and the search engine operator may not always have sufficient information to decide whether the request for the deletion is justified. Moreover, the Law does not provide a procedure for the website owner to challenge the deletion of the website’s links containing the name and surname of the individual in question.
The authors of the Law say that it generally follows the existing European practice, however, the “right to be forgotten” principle under the Law is much broader than the one set out in Europe, as it includes not only false, outdated and irrelevant information, but also information that is distributed in violation of the Russian legislation. The determination as to whether this criterion is satisfied does not generally fall within the competence of search engine operators abroad.
Please note that various practical implications of the Amendments are yet to be fully considered by the Russian regulators. The Amendments are too vague and allow for varied interpretations of legal norms. In addition, there is currently no developed judicial guidance on the application of the Amendments.
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