Communicated on 15 February 2021
Published on 8 March 2021
THIRD SECTION
Application no. 8671/17
OOO MEMO and Grigoriy Sergeyevich SHVEDOV against Russia
and 4 other applications
(see list appended)
STATEMENT OF FACTS
1. The applicants are OOO Memo, a limited liability company under Russian law which is the founder and editor of the online media Caucasian Knot, and its editor-in-chief, Mr Grigoriy Sergeyevich Shvedov, a Russian national who was born in 1976 and lives in Moscow. The applicants are represented before the Court by Mr T. Misakyan and Ms G. Arapova, lawyers practising in Moscow and Voronezh, respectively.The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. The Caucasian Knot (Кавказский узел, www.kavkaz-uzel.eu) is an independent online publication covering news, politics and human-rights issues in the North Caucasus and Southern Russia.Referencing an extremist organisation
Application no. 42034/19
4. On 2 August 2018 the Caucasian Knot reported on the mass baptism in a military unit of the Nagorno Karabakh Defence Army. While a large majority of Nagorno Karabakh residents belonged to the Armenian Apostolic Church, children of parents belonging to minority religions had been punished for refusing to perform military service. As an example, the case of one of Jehovah’s Witnesses who had been arrested for draft evasion in 2011 was cited. On 24 August 2018 the Russian media and telecoms regulator Roskomnadzor charged both applicants with an offence under Article 13.15(2) of the Code of Administrative Offences (CAO), for writing about Jehovah’s Witnesses without the required note that their organisation had been banned in Russia for extremism. The applicants replied that the publication concerned the religious community of Jehovah’s Witnesses in Nagorno Karabakh rather than the Administrative Centre of Jehovah’s Witnesses in Russia which had been banned. They also added the required note to the report. On 24 September 2018 a justice of the peace in Moscow found both applicants guilty as charged and fined the applicant company 40,000 Russian roubles (RUB) and Mr Shvedov RUB 4,000. On 30 January 2019 the Ostankinskiy District Court upheld the conviction on appeal, without addressing their arguments.Child victims of criminal offences
(a) Application no. 8671/17 (application form dated 12 December 2017)
5. A report on a trial for the murder of an eleven-year-old girl in a boarding school, published on the website of the Caucasian Knot on 23 December 2016, gave the victim’s name and age. On 29 December 2016 Roskomnadzor asked the applicant company to justify the grounds for processing the personal data of a minor. On the following day the applicant company replied that the publication of personal data of crime victims was covered by the exceptions in the Media Act and Personal Data Act. It enclosed a statement from the victim’s mother who had given the written consent to having her daughter’s personal details published. Lastly, it informed Roskomnadzor that the victim’s details had been redacted. On 20 and 27 February 2017 Roskomnadzor charged the applicant company and Mr Shvedov with dissemination of information capable of harming the development of children, an offence under Article 13.21(2) of the CAO. In its view, a report on a trial involving an underage victim ought to be targeted exclusively to an adult audience, whereas the Caucasian Knot was labelled as being restricted to people aged 16 and above. On 30 March and 19 April 2017 a justice of the peace in Moscow found both applicants guilty as charged on the basis of the Protection of Children from Harmful Information Act (no. 436-FZ of 29 October 2010) which prohibited the media from publishing information about underage victims of criminal assaults. The proceedings were conducted in the absence of a representative of Roskomnadzor; the judge read out the charges and evidence against the applicants. The applicant company was fined RUB 50,000 and Mr Shvedov RUB 10,000. On 27 June 2017 the Ostankinskiy District Court dismissed their appeals.
(b) Application no. 22133/17
6. On 11 November 2015 the Caucasian Knot website published the news of the Supreme Court of Chechnya upholding the conviction of a woman who had ill-treated her four-year-old step-daughter. The name of the child victim and the circumstances of the crime had been taken from a press-release on the website of the Government of Chechnya. On 30 December 2015 Roskomnadzor issued the applicant company a warning for disclosing the personal data of the child victim and requested that it be removed. The applicant company challenged the warning before a court, claiming it could not be held liable for reproducing the contents of an official press-release. It also produced the victim’s mother’s written consent to using her daughter’s details in the publication. On 28 March 2016 the Taganskiy District Court dismissed the complaint, finding in particular, that the mother’s consent did not have the requisites which the Personal Data Act required. It also pointed out that a warning was a means to prevent a future violation of law rather than punishment for a violation that had already occurred. On 22 September 2016 the Moscow City Court dismissed the applicant company’s appeal in a summary fashion.Profane language
(a) Application no. 8671/17 (application form dated 30 December 2016)
7. On 29 December 2015 the Caucasian Knot published excerpts from a legal analysis of the charges against two Ukrainian servicemen who were alleged to have killed Russian military staff in Grozny in January 1995. It appears that the analysis quoted profane language used by some witnesses. On 4 and 24 February 2016 Roskomnadzor issued a warning to the applicant company and also laid charges against Mr Shvedov for disseminating a publication containing profane language, an offence under Article 13.15(3) of the CAO. In response to the warning, the company redacted the profane speech in the publication. On 28 March 2016 a justice of the peace in Moscow found Mr Shvedov guilty as charged and fined him RUB 5,000. Mr Shvedov had been informed of the hearing the day before and was unable to attend; the judge refused his e‑mail request for an adjournment. On 25 July 2016 the Ostankinskiy District Court in Moscow dismissed his appeal in a summary fashion. By a judgment of 16 May 2016, as upheld on appeal on 22 September 2016, the Taganskiy District Court dismissed the applicant company’s challenge to the warning.
(b) Applications nos. 53194/19 and 64207/19
8. In September and October 2018 Roskomnadzor charged the applicants for disseminating publications containing profane language, an offence under Article 13.15(3) of the CAO. Two sets of charges related to a section of the Caucasian Knot website featuring a top ten of North‑Caucasian bloggers. In each case, the offending content was posted by someone else but was accessible via the ranking. The first Facebook video showed a violent altercation and a shouting match between court bailiffs and family members of two North Ossetian servicemen who had been convicted for beating higher-ranking Russian recruits. The second Facebook video was made by an eye-witness to a major flood in Tuapse, the driver of a fire engine who started swearing on seeing a natural disaster of that magnitude. The third set of charges related to a guest blogger’s post which included a link to someone else’s YouTube video showing a brawl that had erupted after a mixed martial arts fight. On 12 and 26 November 2018 and 10 January 2019 a justice of the peace in Moscow found the applicants guilty as charged and fined the applicant company a total of RUB 120,000 and Mr Shvedov a total of RUB 25,000. The justice did not address the applicants’ submission that the content had been made available by third parties. On 27 March and 13 June 2019 the Ostankinskiy District Court upheld the conviction, holding that the identity of the video authors and their location on third-party websites had no legal significance.Relevant domestic lawReferencing extremist organisations
9. Dissemination of information about an association or organisation which was dissolved or banned on the grounds set out in the Suppression of Extremism Act (Law no. 114-FZ of 25 July 2002) without mentioning that such association or organisation was dissolved or banned as extremist is punishable with a fine of between RUB 2,500 and 2,500 for individuals, between RUB 4,000 and 5,000 for officials, and RUB 40,000 to 50,000 for legal entities (Article 13.15(2) of the CAO, “Abuse of freedom of the media”).Underage victims of criminal offences
10. Unlawful dissemination of information about an underage victim of a criminal assault, including by sharing his or her name, date of birth, place of residence, work or study, photographs, video recordings or any other personally identifiable information, is punishable with a fine of between RUB 3,000 and 5,000 for individuals, between RUB 30,000 and 50,000 for officials, and RUB 400,000 to 1,000,000 for legal entities (Article 13.15(3) of the CAO, read together with section 4 of the Media Act, Law no. 2124-1 of 27 December 1991).
11. Non-compliance with the established procedure for distributing among children of media content capable of harming their well-being or development, with the exception of cases envisaged in Article 13.15(3) of the Code, is punishable with a fine of between RUB 2,000 and 3,000 for individuals, between RUB 5,000 and 20,000 for officials, and RUB 20,000 to 200,000 for legal entities (Article 13.21(2) of the CAO).Profane language
12. Production or dissemination of media content which includes “profane words” (нецензурная брань) is punishable with a fine of between RUB 2,000 and 3,000 for individuals, between RUB 5,000 and 20,000 for officials, and RUB 20,000 to 200,000 for legal entities (Article 13.21(3) of the CAO).
13. The legislation does not define the term “profane words”. On 5 June 2014 Roskomnadzor issued a set of recommendations for the application of Article 13.21(3) of the CAO:
“For the time being, there is no single list of profane words. Nevertheless, some experts hold the view that the profane words and expressions include the four well‑known words that start with the letters “kh” [Russian for ‘dick’], ‘p’ [Russian for ‘pussy’], ‘e’ [Russian for ‘fuck’] and ‘b’ [Russian for ‘whore’] and the derivative expressions.
...
The task of detecting profane words in the media must take account of the requirements of section 57 of the Media Act, according to which the editor or journalist may not be held responsible for the sharing of content ... of original works broadcast live or texts not requiring editing according to the Media Act. This is the case with live television and radio shows where it is impossible to anticipate what an invited studio guest might say on air. The same goes for mass events when they are broadcast live. Nonetheless, editors are responsible for preparing the guests who are invited to speak on air. However, if a recorded show is streamed, the editors must take all necessary steps to remove profane words from the air.
...
If profane words are found in a comment or blog, Roskomnadzor ... sends a letter of complaint to the editor of the online media. Upon receipt of the letter, the editor may delete or mask the offending words. If the comments constituting an abuse of freedom of the media remained accessible to the users of the site, Roskomnadzor ... sends a warning to the editor and founder of the media ...”
COMPLAINTS
14. The applicants complain in all cases under Article 10 of the Convention of an unjustified interference with their right to freedom of expression. They emphasise that the regulator and courts did not take due account of the fact that the offending information had been diligently deleted or amended, that such rigid regulation was not necessary in a democratic society, that the amounts of fines had been excessive and that the applicant company and Mr Shvedov had been separately fined for the same acts.
15. In applications nos. 8671/17 and 53194/19, the applicants also complain under Article 6 of the Convention that the proceedings had been conducted in the absence of a prosecuting party, with judges substituting themselves for prosecutors.
QUESTIONS TO THE PARTIES
1. Has there been a violation of Article 10 of the Convention in each case? Did the domestic courts apply the Convention standards in reaching their decisions and take due account of the relevant elements? In particular,
(a) In application no. 42034/19 concerning non-compliance with the requirement to indicate that an association was banned as extremist, was the statutory norm, on which the interference was based, formulated and interpreted in a clear and foreseeable manner? Did the requirement apply to the banned organisation of Jehovah’s Witnesses in Russia or to other organisations of Jehovah’s Witnesses outside Russia?
(b) In applications nos. 8671/17 (first application form) and 22133/17 concerning non-compliance with the restriction on the identification of child victims of criminal offences, was the statutory basis for the restriction sufficiently clear and foreseeable? What elements distinguished the offence under Article 13.21(2) of the Code of Administrative Offences (CAO) from that under Article 13.15(3) of the CAO? What regulations determined that such content was unsuitable for an audience aged 16 to 18 years? Did the restriction apply irrespective of the wishes of the child victim’s parents or guardians, the nature of the offence or other countervailing considerations? Did the courts consider that the information had been made public in an official press-release (compare with Aleksey Ovchinnikov v. Russia, no. 24061/04, §§ 49-52, 16 December 2010)?
(c) In applications nos. 8671/17 (second application form), 53194/19 and 64207/19 concerning the restriction on using profane language in the media, was the legal basis for the restriction sufficiently clear and foreseeable? Was there any legal guidance on the scope of the notion of “profane words”, beyond Roskomnadzor’s recommendations? Did the national authorities consider the fact that the publications quoted or hyperlinked third-party content and that they were taken down promptly upon notification (see, for relevant principles, Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary, no. 22947/13, § 91, 2 February 2016, and Magyar Jeti Zrt v. Hungary, no. 11257/16, §§ 73-76, 4 December 2018)?
2. In applications nos. 8671/17 and 53194/19, has there been a violation of the impartiality requirement under Article 6 § 1 of the Convention on account of the absence of the prosecuting party from the proceedings (see Karelin v. Russia, no. 926/08, 20 September 2016)?
APPENDIX
No.
Application no.
Case name
Lodged on
1
8671/17
OOO Memo and Shvedov v. Russia
30/12/2016
12/12/2017
2
22133/17
OOO Memo v. Russia
21/02/2017
3
42034/19
OOO Memo and Shvedov v. Russia
28/07/2019
4
53194/19
OOO Memo and Shvedov v. Russia
27/09/2019
5
64207/19
OOO Memo and Shvedov v. Russia
11/12/2019
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