Communicated on 28 January 2020
Published on 17 February 2020
THIRD SECTION
Applications nos. 56491/18 and 11884/19
Aleksey Anatolyevich NAVALNYY against Russia
and OOO ZP against Russia
lodged on 12 November 2018 and 23 February 2019, respectively
STATEMENT OF FACTS
1. The applicant in the first case, Mr Aleksey Anatolyevich Navalnyy, is a Russian national, who was born in 1976 and lives in Moscow. He is represented before the Court by Mr V. Gimadi, a lawyer practising in Moscow. Mr Navalnyy is a politician and popular blogger known for investigating corruption among senior Russian officials and publicising the findings on his YouTube channel and personal blog http://navalny.com.
2. The applicant in the second case, OOO ZP, is a limited liability company incorporated under Russian law in 2014. It is represented before the Court by Mr D. Gaynutdinov, an advocate practising in Kazan. The company is the founder and publisher of the online magazine Mediazona (https://zona.media).
3. The facts of the case, as submitted by the applicants, may be summarised as follows.
4. On 7 February 2018 Mr Navalnyy uploaded a YouTube video “Yachts, oligarchs, and girls: a man-hunter exposes a bribe-taker” showing a deputy Russian prime-minister being lavishly entertained on the yacht of the Russian billionaire D. off the coast of Norway. The report drew on photographs and videos published on the Instagram and YouTube accounts of an escort worker Ms V. who claimed having an affair with D. and also recorded him having a conversation with the deputy prime-minister during the latter’s stay on the yacht. In his report, Mr Navalnyy claimed that the deputy prime-minister’s stay on D.’s yacht – to which he had been brought in D.’s private jet – effectively amounted to a bribe from the billionaire. Mr Navalnyy also listed the deputy prime minister’s expensive property holdings in and around Moscow.
5. On the following day Mr Navalnyy’s report was widely commented upon in independent Russian media. The second applicant’s online magazine published a summary of the report which included a hyperlink to the YouTube video, D.’s and deputy prime-minister’s photographs and a recorded route of D.’s yacht from an online ship tracking database. Asked for his comments, the deputy prime-minister said that suing Mr Navalnyy in defamation would give him “too much honour” and that “other people would do it”.
6. On 9 February 2018 counsel for D. brought a claim against Ms V. and her business partner Mr K. for the protection of D.’s personality rights. It was submitted that V.’s and K.’s Instagram and YouTube account featured multiple images of D. which had been published without his contest and unlawfully used for commercial purposes, for promoting their “oligarch seduction lessons”. The statement of claim listed Roskomnadzor, the Russian telecoms regulator, as a third party and requested the removal of D.’s images from V.’s and K.’s accounts.
7. The claim was brought before a district court in D.’s native town of Ust-Labinsk in the Krasnodar Region. Mr Navalnyy and OOO ZP had no information about the claim.
8. On the same day the district court issued an interlocutory injunction requiring Roskomnadzor to restrict access to D.’s images in V.’s and K.’s accounts and also to Mr Navalnyy’s entire website, his post about the investigation and the video on his YouTube channel, as well as to the reports about the investigation published by other media, including the Mediazona magazine:
“A failure to take interim measures on D.’s claim may render complicated or impossible the enforcement of the court’s decision. Should the private information remain on the webpages to which the public has access, the protection of the claimaint’s right to the image, personal data and private life would be impossible ... Publication, dissemination and use of personal information may cause the plaintiff to incur damage to his reputation and property rights. Taking into account that the claim seeks to safeguard the confidentiality of his private life, the interim measures requested are proportionate to the object of the claim and also guarantee a balance of the parties’ interests.”
9. Roskomnadzor required the applicants to remove the offending information within twenty-four hours under penalty of having access to their websites restricted. OOO ZP removed the hyperlink, the photographs and the yacht’s route from its website; Mr Navalnyy refused to make any changes.
10. Both applicants and one media outlet filed interlocutory appeals against the 9 February injunction. Mr Navalnyy submitted that the injunction had undermined his rights because he had not been informed of the proceedings and that its scope had been excessively broad, restricting access, as it did, to his entire website. OOO ZP claimed that the injunction had had no legal basis and unduly restricted freedom of expression.
11. On 27 March 2018 the Krasnodar Regional Court upheld the 9 February injunction, holding that it had not affected the rights of the parties to the proceedings and reiterating that “a failure to take interim measures [might] render complicated or impossible the enforcement of the court’s decision”.
12. On 26 September and 9 November 2018 the Supreme Court of the Russian Federation refused the applicants leave to appeal to the cassation instance.
COMPLAINTS
13. The applicants complain under Articles 10 and 18 of the Convention that the true purpose of the interlocutory injunction was the suppression of information about the report which exposed the corrupt practices of the deputy prime-minister.
QUESTIONS TO THE PARTIES
1. Was there a violation of Article 10 of the Convention as regards the interlocutory injunction of 9 February 2018 (see, for applicable principles, Cumhuriyet Vakfı and Others v. Turkey, no. 28255/07, §§ 56-76, 8 October 2013)? In particular,
(a) Did the domestic courts take into account the context in which the proceedings for the protection of the personality rights were issued?
(b) Did the domestic courts determine the scope of the injunction with sufficient precision and did they give sufficient and relevant reasons for including Mr Navalnyy’s entire website within its scope?
(c) Did the Regional Court address the arguments which the applicants raised in their appeals?
(d) Had the applicants been given an opportunity to present their arguments before the injunction was granted?
2. Was a restriction on the applicants’ right to freedom of expression imposed for any purpose other than that for which the Convention allowed it to have been imposed, in breach of Article 18 of the Convention?
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