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Agora: New RU-CENTER Regulation Contradicts Federal Law and Constitution

Source: (info), 15/02/12 
From 24 February one of Russia’s leading Domain Registration Centres, RU-CENTER, will introduce changes to its own regulations, according to which the assignment of any third-level domain in Runet can be terminated without the decision of a court. In other words, in practice any website registered by RU-CENTER can be closed down. Bloggers and journalists have already called this initiative the introduction of political censorship in the Russian Internet.

Damir Gainutdinov, a lawyer specializing in the freedom of the Internet at Agora, has conducted an analysis of the new regulation.

‘Law enforcement officers have gotten fed up with negotiating with each individual regional Internet Service Provider and having to go through the tedious process of obtaining a court order to block access to an opposition or simply independent Internet site for several hundred users,’ Damir Gainutdinov comments. ‘Even when a request of this kind has been obtained, people can quite calmly read the web-pages that are of interest to them with the help of proxy servers or when they are visiting friends in a neighbouring region. After each appeal to the court, in the eyes of the public the law enforcement officers appear as the stranglers of freedom, engaged solely in the closure of websites.' 

According to Damir Gainutdinov, the option of terminating the assignment of a domain on the initiative of the registration body, to be permitted under the new regulation 1/15, is extremely attractive for several obvious reasons. First, it guarantees the closure of access for all Internet users in any part of the world to an undesirable website. Second, it makes everything look like an unexceptional ‘dispute between economic actors.’

‘Indeed, the registration body provides services, and determines the procedures by which it provides them. No one has forced anyone to register a website in this particular domain, but they did register it and consequently they are in agreement with the right of the Regional Internet Information Center to assess independently the User’s activities for legal compliance, including instances where the releveant issues are not defined by law. RU-CENTER will itself decide what is good and what is bad, what is moral and what is immoral.

Of course, RU-CENTER is not the only registration body. However a worrying tendency is evident. In recent years public officials have regularly expressed the view that it is necessary to tighten control over the Internet. In November the Coordination Centre of Domains RU/РФ took the decision to give itself the ability to terminate assignment of domain names on the basis of a simple request by law enforcement agencies leading a criminal inquiry. And there was no requirement for reasons to be given. From 24 February the new regulation enters into force.

The organizers and implementers of all changes have forgotten that a website is not only an object of commercial activity. Often it is a means of realizing the constitutional right to freedom of expression, and the search for, and dissemination of, information. In other words, what is at issue is far from being just a question of contractual relations between the Registrar and the User for the provision of services. The new regulation concerns the public interest.

If we take this question into account, then a contradiction is evident between the new regulation and a whole series of federal laws, not to speak of the Constitution and Russia’s international obligations.

If a website is registered as a mass media outlet, then the regulation contradicts Article 1 of the ‘Law on the Mass Media’ which lays down that in Russia the search, reception, production and dissemination of information, the ownership, use and direction of mass media outlets, and also the preparation, acquisition, storage and exploitation of technical devices and equipment, raw materials and materials for the production and dissemination of mass media products cannot be limited except in a manner regulated by the law on the mass media. This provision of the law was created before the Internet came into existence. However, the spirit of the law places a ban on limiting the activity of websites, except in ways already established by law.

In practice the new regulation will introduce censorship, a term which in law implies the banning of dissemination of communications and information. However, according to Article 3 of the ‘Law on the Mass Media’, the censorship of mass media is not permitted.

First, taking into account the public significance of mass media, the legislator introduced into the Administrative Code (Article 13.16) a provision that establishes liability for hindering the lawful distribution of media products. Since with regard to the new regulation what is at issue is the fact that a Registrar will independently decide whether the activity of a website administrator is lawful, since it is proposed that no decisions of this kind will be taken by state bodies. In other words, the state considers this activity to be lawful. Consequently, the termination of assignment of a media website’s domain on the basis of Section 3.3.6 of regulations1/15 will constitute a violation of administrative law. The punishment is a laughable fine of up to 5,000 roubles, but the essence of the case is not changed.

Second, a website can belong to a non-profit organization created for social, philanthropic, cultural, educational, research, or other, purposes related to the public good. Such activity is impossible without the dissemination of information, and publication on a website is one of the more effective means to distribute such information to the widest possible group of interested people. If non-profits are denied the opportunity to disseminate information, this makes the work difficult, not to say senseless.

The purposeful blocking of dissemination of information by a non-profit needs to be considered as a violation of the right to freedom of association, guaranteed by Article 30 of the Constitution of the Russian Federation and Article 11 of the European Convention on Human Rights and Fundamental Freedoms. Limitations of this right are possible only on the basis of law and on condition they are necessary in a democratic society in the interests of national security and public order, to prevent disorder or crime, to protect health, morality, or the rights and freedoms of other persons.

The Law on Non-Profits lays down that governmental bodies and local self-government should support socially-oriented non-profits in the dissemination of information.

Third, an individual who registers a website, writes a blog or opens a personal webpage, is realizing their constitutional right to freedom of expression. Article 10 (2) of the European Convention establishes that limitations of this right are permissible only on the basis of law if necessary in a democratic society in the interest of national security, territorial integrity or public order, to prevent disorder or crime, to protect health, morality, the reputation or rights of other persons, to prevent the divulging of confidential information, or to ensure the authority and impartiality of justice. Agora’s legal experts stress that such limitations are permissible on the basis of law, and not on the basis of regulation 1/15, related to a contract for the provision of specific services.

If a state permits a private registration body to take upon itself the right to define concepts that are properly speaking legal in nature (such as the definition of pornography imported into the regulation by means of a citation) and on its own initiative to limit the rights and freedoms of citizens, then the state is in violation of Article 1 of the Convention that obliges a state to ensure for each person under its jurisdiction the rights and freedoms set out in the Convention.

Fourth, regulation 1/15 contradicts the Civil Code of the Russian Federation. The regulation is part of a civil contract for the provision of services. Article 1(2) of the Civil Code lays down that citizens and legal persons are free to establish their mutual rights and duties on the basis of a contract and to agree upon any contractual terms, on the condition that these do not contradict the law. In the paragraphs above it has been set out why some provisions of regulation 1/15 violate the legislation, and consequently freedom of contract does not apply to them.

Furthermore, in concluding a contract for the provision of a range of services, the registration body takes on itself a series of obligations, the fulfilment of which is paid for on a regular basis by the recipient of the services. A termination of assignment of a domain is a unilateral refusal to meet contractual obligations. Such a refusal in terms of the general rules laid down by Article 310 of the Civil Code is not permitted, and is possible only in specific circumstances defined by law. In particular, a unilateral refusal of a party to fulfil its contractual obligations to provide services for a consideration is permitted only on the condition of full compensation to the recipient of the services for any loses incurred (Article 782 of the Civil Code). ‘Is RU-CENTER truly ready for this?’ asks Agora’s legal analyst, Damir Gainutdinov.
Rights in Russia,
17 Feb 2012, 08:30