Yuri Pustovit, Advocate of the Krasnodar Bar Association, Managing Partner of Advocates Bureau Yug

In 2016, Federal Law No. 264-FZ dated July 13, 2015, entered into force, providing for amendments to Federal Law No. 149-FZ dated July 27, 2006, "On Information, Information Technologies and Information Protection" (hereinafter referred to as the "Information Law") and to the Civil Procedure Code of the Russian Federation. Therefore, today Russia has a new legal instrument that allows limiting the dissemination of information about citizens on the Internet. These changes were the first to establish the concept of "search engine", the responsibilities of their operators, and the procedure for removing website links from search results. These changes are the evolution of the right to be forgotten in its modern sense (the definition is used in the legislation and judicial practice of the European Union, the United States, and countries of Latin America).

When is it possible and appropriate to use this right? The Information Law distinguishes four categories of cases:

• - information disseminated in violation of Russian Law (for example,

  insults, personal photos, illegal processing of personal data);

• - false information;
• - irrelevant information;
• - information that has become irrelevant to the applicant due to subsequent events or the applicant s actions.

According to the statistics of the Yandex search engine, the largest number of requirements is connected to the removal of links to reliable but outdated information by search engines (for example, about a repaid criminal record, unconfirmed assumptions on being involved in law violation, data on the repaid debts, alimony).

The "right to be forgotten" applies only to individuals and is suitable for legal entities. However, before adopting the Information Law, there were discussions about including legal entities and commercial companies as subjects of the "right to be forgotten". But search engine operators gave very negative feedback. According to them, including legal entities would significantly expand the responsibilities of search engines and change the scope and essence of possible claims in future.

Let us consider in more detail the peculiarities of the pre-trial procedure for this category of cases, preparation of a statement of claim and proof establishment during the court proceedings.

Pre-trial

According to Part 1, Art. 10.3 of the Information Law, a search engine operator who advertises on the Internet and aims to attract consumers is obliged at the request of an applicant to remove website links from search results, as it allows access to applicant s personal data which is distributed against the law, unreliable, irrelevant or lost its significance for the applicant due to their subsequent events or actions.

The exception is the data containing signs of criminal offences in which the statute of limitations has not expired, or criminal conviction has not been removed or repaid.

The application must contain:

- applicant s full name and passport data;

- contact information;

- applicant s data the links to which are to be removed;

- grounds stating the website links are to be removed by the search engine;

- applicant s consent to process their personal data.

If the applicant s request submits incomplete, inaccurate or incorrect information, the search engine operator is entitled to send a notification requesting the applicant to clarify the submitted information within ten working days upon receiving the said notification. He is also entitled to request the applicant to provide ID documents.

According to Part 7 of Article 10.3 of the Law on Information, if the search engine operator refuses the applicant s request and the latter considers this action to be unjustified, the applicant is entitled to file a statement of claim on removal website links to their data from search results as the request primarily states.

The claim on the removal of website links from search results is to be sent directly to the search engine operator. You can send it via a digital form available at the operators support page, such as:

Yandex: https://yandex.ru/support/abuse/troubleshooting/oblivion.html,

Google: https://support.google.com/legal/contact/lr_rudpa?&product=websearch.

Search engine operators prefer receiving digital requests as it allows them to process claims faster without transforming their content into digital format and copying by hand hundreds of links, minimizing a chance of technical errors.

However, you should note that it takes some effort to provide digitally all documents confirming the unreliability or non-relevance of information. For example, the Yandex support page offers a digital form for sending "an application on removing website links to the distributed data violating the Russian Law from the search results. Meanwhile, this form allows a sender to attach additional documents of solely limited number and size. Thus, it may be difficult for the applicant. On the other hand, you can also send a written request by postal mail.

In practice, search engine operators in court disputes refer primarily to non-compliance with the pre-trial procedure . It is the core ground for refusing the statement of claim in consideration (Sec. 2, Art. 222 of the Civil Procedure Code of the Russian Federation). Referring to the plaintiff s non-compliance with the pre-trial procedure, the defendants can prove their reasoning with the absence of a formal refusal written by the operator to the claim, the insufficient volume of confirming documents submitted during the pre-trial, failure to provide evidence of information being unreliable and irrelevant, failure to provide additional documents by applicants in response to a search engine operator s request to provide them. Thus, when considering compliance with the pre-trial procedure, the plaintiff must prove many circumstances.

We should remember that search engine operators are not qualified to establish significant legal facts. The Information Law does not explicitly define the grounds for data removal from the Internet. Therefore, if the search engine to which the applicant sent a request has doubts about the validity of the claim, it will likely refuse the latter. The unconditional grounds for the search engine are the decisions of a court or a competent state authority. Without it, the applicant will have to provide evidence and confirmation of information being unreliable or irrelevant. Thus, the operator will have no doubts and grounds for refusal (for example documents proving the repayment of the debt or copyrights, photographic materials or expert opinions confirming circumstances).

The obligation to remove website links to the data on the Internet does not apply to information about events containing signs of criminal offences in which the statute of limitations has not expired, or criminal conviction has not been removed or repaid. By establishing such exceptions, in our opinion, the legislators tried to find an equilibrium between the rights of citizens and the public interest. We may also assume that such removal of information may violate users rights to access the information.

Jurisdiction and claim preparation

According to Art. 28 of the Civil Procedure Code (CPC) of the Russian Federation, a claim against an organization is to be filed at the location of the organization. Part 6.2, Art. 29 of the CPC provides that the plaintiff may file a claim to remove website links to distributed personal data from search results at the place where he resides.

Thus, the cases under consideration are subject to an alternative territorial jurisdiction. A claim to remove website links to distributed personal data from search results can be filed at the location of either the defendant or the plaintiff.

The jurisdiction issue is related to the problem of choosing a defendant. The most popular search engines are Yandex, Google, Mail.ru.

These operators have Russian respective legal entities — OOO Yandex, OOO Google and OOO VK. While the article was in process the authorities initiated bankruptcy proceedings against OOO Google. When choosing a defendant, it is necessary to be guided by the user agreements (terms of use) for search engines. These documents indicate both the exact name of the legal entity and its legal address. It is not difficult to find them on the Internet. In relation to the Google search engine, the courts recognize a legal entity Google LLC registered in the state of California in the USA as the initial defendant. Therefore, a lawsuit should be filed against this company. The courts consider OOO Google LLC, OOO Mail.ru Group and other legal entities not included in user agreements as improper defendants (see: Ruling of the Second Cassation Court of General Jurisdiction dated November 30, 2021, in case No. 88-27775/2021).

Meanwhile, according to Par. 11, Part 3, Art. 402 of the CPC, the Russian courts have the right to consider cases involving foreign persons if the plaintiff who files the claim to remove website links to distributed personal data from search results resides in the Russian Federation.

The law does not limit the applicant in the number of references used to make a pre-trial claim and a statement of claim subsequently. In these cases, plaintiffs usually request to remove hundreds or thousands of website links to distributed personal data in one claim. Obviously, a court will struggle while considering such voluminous statements. As a rule, the defendants point it out and use it to prove to the court that concepts of "irrelevant" and "unreliable" information are all mixed up in the claim or that its motivational and pleading parts contradict each other.

If there are many references in the pleading part of the claim we recommend preparing a justification for the claim in tabular form naming the columns as follows: 1) a link address; 2) a reason for its removal (illegal, irrelevant, unreliable); 3) evidence confirming the information is illegal, irrelevant, unreliable.

During consideration, there may be a situation when a search engine no longer shows some links because pages with the information have been deleted. If the defendant can confirm this, then a court may demand the plaintiff to clarify the claim. There may be a situation when access to the website (information resource) is blocked (restricted). Such a circumstance rarely excludes illegal actions of a search engine which shows website links to unreliable or irrelevant personal data (Ruling of the Seventh Cassation Court of General Jurisdiction of February 8, 2022, No. 88-2144/2022 in case No. 2-3/2021).

Proving evidence in a court