Liability for old published materials in the Internet

Pepeliaev Group advises that in its Ruling No. 575-O dated 28 March 2024, the Russian Constitutional Court recognised as an ongoing offence prohibited information being present in the Internet that had been posted before it was recognised as prohibited.

If a person has not deleted from the Internet information that has subsequently been recognised as prohibited, such person may be held liable.

The subject matter that the Constitutional Court considered

In 2022, Moscow municipal deputy Elena Selkova was fined under article 20.3 of the Code of Administrative Offences because, in 2019, posts were published on her social media pages containing symbols of a company that was subsequently recognised as extremist. As the newspaper Vedomosti has specified, the symbols in question were logos of Alexey Navalny’sOrganisations that are recognised as extremist are prohibited in the Russian Federation.
 headquarters. At the time these were published, the activities of the headquarters were not prohibited in Russia, but in 2021 they were recognised as extremist.

The decision of the Constitutional Court was adopted after a complaint had been examined with respect to whether article 20.3 of the Code of Administrative Offences, which concerned the public demonstration of symbols of extremist organisations, complied with the Constitution. In Selkova's opinion, the article allows for administrative liability to be imposed for an act that did not constitute an administrative offence at the time it was committed.

The Constitutional Court rejected the appeal and clarified that: “The unlawful nature of the act manifests itself in the fact of the public demonstration (propaganda) of symbols of an extremist organisation”. At the same time, the Constitutional Court noted that the time when such a symbol was posted is irrelevant: once the court recognises an organisation as extremist, the public demonstration of its symbols is prohibited and must cease.

The Ruling caused Alexander Hinstein, the chairman of the State Duma’s Committee for Information Policy, Information Technologies and Communications, to make a statement. According to him, liability for publishing symbols in the Internet that were not prohibited at the time of publication will occur in any case. He also noted that this also concerns “comments, reposts of other people’s published material, [as well as] statements in closed accounts and chats with more than two participants”https://t.me/Hinshtein/6479
.

Administrative liability

Extensive law enforcement practice has evolved by the present time under the similar article 20.3.3 of the Commercial Procedure Code. For instance, the Sixth Cassation Court of General Jurisdiction upheld the claims of the authorised body to hold a person liable under article 20.3.3(1) of the Code of Administrative Offences for public actions (comments left in social media) that were aimed at discrediting the Armed Forces of the Russian FederationResolution No. 16-2844/2024 of the Sixth Cassation Court of General Jurisdiction dated 7 June 2024 (UID 63RS0038-01-2023-008646-75)
. By a resolution of the Sverdlovsk Region Court, Mr I. was held liable under article 20.3(1) of the Code of Administrative Offences for propaganda, or a public display of Nazi, extremist and other prohibited emblems and symbols, by leaving a comment in TelegramResolution of the Sverdlovsk Regional Court dated 24 April 2024 in case No. 71-210/2024(UID 66RS0001-01-2024-003395-76)
.

Criminal liability

We do not rule out criminal liability, for instance, for a post that distributes extremist materials (article 280 of the Criminal Code), or that incites hatred or hostility, or abases human dignity (article 282 of the Criminal Code).

What to think about and what to do

The resolution of the Constitutional Court determines the subsequent situation in case law.

Moreover, this spring, the restriction on advertising on foreign agents’ information resources found its way into legislationFederal Law No. 42-FZ “On amending article 11 of the Federal Law ‘On supervising the activity of persons under foreign influence’ and individual items of Russian legislation” dated 11 March 2024.
. On 25 July 2024 the State Duma adopted in the first reading a draft law on the prohibition of advertising in extremist social mediaDraft law No. 652920-8 (https://sozd.duma.gov.ru/bill/652920-8).
. Failure to comply with these restrictions will give rise to liability under the law. The legal position of the Constitutional Court will allow for advertisers to be held liable for posting advertising before the restrictions were introduced if such advertising is still on the information resource, including in social media.

We also recommend analysing whether you are exposed to the above risks of being held liable.

Help from your adviser

The experts of Pepeliaev Group are ready to assess, from the perspective of the administrative and criminal law classification, business decisions you adopt, corporate amendments you are planning and other organisational and legal actions within the scope of the business.