Explanation of the liability of registrars as information intermediaries

Par. 1 of Article 1253.1 of the Civil Code of the Russian Federation sets out the definition of persons who are information intermediaries in relations to a person transmitting materials to an information-telecommunications network, including the internet, a person making it possible to publish materials or information required to obtain the materials through an information-telecommunications network, or to a person making it possible to access materials within its network.

Therefore, the law distinguishes three determining criteria for information intermediaries:

a person transmitting materials in an information-telecommunications network, including the internet;
a person making it possible to publish materials or information required to obtain them through an information-telecommunications network;
a person making it possible to access materials within an information-telecommunications network.

Under Article 2 of Federal Law No. 149-FZ dated July 27, 2006,On Information, Information Technology and the Protection of Information:

an information-telecommunications networkmeans a technological system relying on communication lines to transmit information accessed by means of computer technology;
access to information means the ability to receive and use information;
provision of information means actions directed at a certain group of persons obtaining information or at the transmissionof information to a certain group of persons;
distributionof information means actions directed at the public at large obtaining information or at the transmission of information to the public at large;
internet site means the totality of computer programs and other information contained in an information system accessed through the internet information-telecommunications network (hereinafter “the internet”) using domain names and/or network addresses to identify internet sites;
domain name means a designation with characters for addressing internet sites to access information published online;
network address means the identifier in a data communications network that determines the user terminal and other communication means forming part of an information system when providing telematic communications services;
hosting provider means a person offering the service of providingcomputing capacity to publish information in an information system with a permanent internet connection, and ensuring the possibility of transmitting on the internet website content located through the corresponding domain name.

Under Par. 12, Article 2 of Federal Law No. 126-FZ of July 7, 2003,On Communications, communications operator means a legal entity or self-employed entrepreneur providing communications services under the corresponding license;

A communications operator ensures that a subscriber and/or user get access to the communications network and to the information systems of information-telecommunications networks, including the internet, and can receive and transmit telematic electronic messages as per the license it obtains regarding the provision of telematic communications services (Resolution of the Government of the Russian Federation No. 87 of February 18, 2005, On Approving the List of Communications Services Covered by Licenses, and Lists of Licensing Terms).

Procedures and terms for restricting access to information are set forth in Article 15.1 through Article 15.7 of Federal Law No. 149-FZ dated July 27, 2006, On Information, Information Technology and the Protection of Information, where it is clearly stated that hosting providers or communications operators that provide for the publication and transmission of information though an information-telecommunications network, including the internet, as well as for accessing materials through an information-telecommunications network, including the internet, are among the persons that can restrict access to information, i.e. stop its transmission and/or distribution.

The procedure for restricting access to information on the grounds set forth in the aforementioned provisions implies the direct involvement of a government authority exercising control and oversight regarding mass media, mass communications, information technology and communications in procedures related to restricting access to information in information-telecommunications networks.

The Constitutional Court of the Russian Federation, inits Ruling No. 1759-O dated July 17, 2014, stated: “This sequence of actions is attributable to the specific structure of legal relations and technological links between website owners, hosting providers and communications operators providing internet access services with respect to disseminating information by publishing it on an internet website. It is designed to ensure that proportionate, adequate and effective response measures are taken in various circumstances. This regulatory framework imposes certain obligations on hosting providers and communications operators to stop the distribution of information whenever such activity is prohibited in the Russian Federation. This provision is consistent with the legal reasoning of the Constitutional Court of the Russian Federation binding a person that has the technical ability to delete, without detriment to its rights or legitimate interests, data recognized by courts as being at odds with reality, to undertake the required actions as soon as such person becomes aware of it (in essence consisting of executing an effective court ruling).”

Under Par. 1 of Article 1253.1 of the Civil Code of the Russian Federation, a person delivering materials to an information-telecommunications network, including the internet, a person making it possible to publish materials or information required to obtain them using an information-telecommunications network or a person providing for the access to materials on that network, i.e. an information intermediary, shall be liable for the breach of intellectual property rights in the information-telecommunications network on general grounds as per the Civil Code of the Russian Federation in case of fault, taking into consideration specific provisions set out in Pars. 2 and 3 of the same Article, specifically:

“An information intermediary transmitting materials to an information-telecommunications network shall not be liable for a breach of intellectual property rights resulting from such transmission, if all of the following conditions are fulfilled:

the intermediary is not the initiator of that delivery and does not designate the recipient of the materials in question;
the intermediary does not alter the materials in question when providing communications services, save for alterations related to the technological process of transmitting the materials;
the intermediary did not know and did not have to know that the use of the intellectual property or means of identification in question by the person that initiated the transmission of the materials containing the corresponding intellectual property or means of identification was unlawful.

3). An information intermediary providing the means for placing materials on an information-telecommunications network shall not be liable for a breach of intellectual property rights resulting from the placement of the materials in the information-telecommunications network by a third person or at its instructions, if the information intermediary fulfills all of the following conditions:

the intermediary did not know and did not have to know that the use of the corresponding intellectual property or means of identification contained in such materials was unlawful;
upon the receipt of a written statement of the right holder regarding the breach of intellectual property rights referencing the website page and/or internet web address where the materials in question are published, the intermediary takes the required and adequate measures to cease the intellectual property rights breach. A list of required and adequate measures and procedures for carrying them out is established by law.”

There is currently an ambiguous body of case law on restricting the distribution of information in an information-telecommunications network and holding accredited registrars providing domain name registration services liable in cases of this kind as an information intermediary providing access to information published on or distributed through an information-telecommunications network.

In its Ruling N С01-1000/2015 dated December 9, 2015 in case N А40-52455/2015, the Intellectual Property Court determined that a registrar is an information intermediary and has the technical capability to restrict the distribution of information in an information-telecommunications network.

“A review of conditions set forth in Terms and Conditions of Domain Name Registration in .RU and .РФ approved by the Coordination Center for TLD .RU on October 5, 2011 as document N 2011-18/81, showed that apart from registering domain names by signing a contract with the registrant, a domain name registrar either provides its own hosting services (servers for hosting files relating to the website to which the domain name pertains) or delegates the domain name by entering in the registry the relevant information on the addresses of hosting provider’s servers.

If the domain name registrar fails to enter the relevant information, it is technically impossible for internet users to access the website using its domain name.

Therefore, in case of both the provision of hosting services and domain delegation, by registering a domain name the registrar provides access to materials located on the corresponding site on the internet, and has the ability to restrict (suspend, terminate) access to these materials for internet users.”

At the same time, in its Ruling N С01-342/2016 dated June 3, 2016 in case N А40-102695/2015, the Intellectual Property Court determined that a person cannot be regarded as an information intermediary if it simply provides other persons the possibility to use domain names for directing users toward specific resources in an information-telecommunications network without providing for transmitting materials and information to these resources, including publishing them online or transmitting materials that have already been published online to be viewed or for further processing.
“Under Par. 1 of Article 1253.1 of the Civil Code of the Russian Federation, a person transmitting materials to an information-telecommunications network, including the internet, a person making it possible to publish materials or information required to obtain them using an information-telecommunications network or a person providing for the access to materials in that network, i.e. an information intermediary, shall be liable for the breach of intellectual property rights in the information-telecommunications network on general grounds as per the said Civil Code in case of fault, taking into consideration specific provisions set out in Pars. 2 and 3 of the same Article.

However, considering the regulatory purposes of this Article, the person that is a domain name administrator cannot be regarded as an information intermediary if it simply provides other persons the possibility to use the domain name to direct users to specific resources in the information-telecommunications network without providing for the transmission of materials or information to these resources, including for the purpose of publishing them, or transmitting materials that have already been published online to be viewed or for further processing, considering which the argument put forward by Vektor making a case for a discharge from civil liability as per Article 1253.1 of the Civil Code of the Russian Federation shall be dismissed.”

This position matches the existing case law of the Moscow City Court on matters related to protecting exclusive rights to works published online, whereby:

“… all a domain name registrar does is enter into a relevant registry (database) information on internet site addresses that are taken, their owners and organizations providing hosting services for these websites, but does not act as a provider of computing capacity for placing information or transmitting it through the internet.
Therefore, a domain name registrar cannot be regarded as person transmitting materials to an information-telecommunications network, including the internet, a person making it possible to publish materials or information required to obtain them using an information-telecommunications network or a person providing for the access to materials on that network, i.e. an information intermediary as per Article 1253.1 of the Civil Code of the Russian Federation that can be subject to requirements related to restricting access to the relevant information resources regardless of whether it violated exclusive rights.

Moreover, a domain name registrar cannot restrict access to website pages containing information for accessing works (Ruling of the Moscow City Court dated October 2, 2015 in case N 3-432/2015, Ruling of the Moscow City Court dated July 20, 2015 in case N 3-377/2015, Ruling of the Moscow City Court dated July 16, 2015 in case N 3-378/2015, etc.).

Consequently, when contacted by right holders on infringements related to the distribution of information in an information-telecommunications network, it is recommended that registrars explain to applicants that a person registering the domain name (registrar) cannot be held liable for information on the website accessed using the domain name in question.

The explanation must contain information that according to the Terms and Conditions of Domain Name Registration in .RU and .РФ, the registrar’s activities consist solely of entering information on domain names in the relevant registry, while publishing and distributing information in an information-telecommunications network is impossible without hosting services, meaning that the applicant should contact the hosting provider directly.

This reference note is advisory in nature and is not binding for registrars. Registrars take decisions on matters of this kind independently depending on the specific circumstances and their judgement.