Date of publication: 16 July 2018
Dmitry Konstantinov, Lawyer
The small and medium-sized businesses experienced operational difficulties because of the Roskomnadzor chasing Telegram over the entire Internet network, when millions of IP addresses were randomly blocked. Will it be possible to recover the damage inflicted by Roskomnadzor?
The owners of Internet resources, blocked instead of Telegram, struggle to sue Roskomnadzor. It is unlikely that they win, and not only because the Russian courts rarely satisfy claims against the state bodies. The prohibition of messenger formally complies with the provisions of Russian law, and the State simply does not yet understand how the Internet and the entire digital economy work.
Obviously, Roskomnadzor does not have the technical capability (and perhaps the desire) to block Telegram in the same way as it previously did, for example, with LinkedIn. Together with the messenger (or rather instead of it) hundreds of other resources became inaccessible. Of course, many owners of the Internet resources intended to recover the damage caused by Roskomnadzor.
Predicting the litigation outcome is quite a thankless task. Russian courts do not appear to favour upholding claims filed against the state bodies, with some minor exceptions. But the most important thing here is that this Telegram-related story revealed the real situation with the Internet regulation in Russia. After two decades of almost complete freedom in the cyberspace, the State still lacks an understanding of its basic principles. And this is reflected in the legal regulation of the network.
The powers and authority of Roskomnadzor concerning the Internet are so vaguely formulated that Roskomnadzor really believes that it is completely right. The Government Resolution No. 228 of 16 March 2009, approving the Regulation on Roskomnadzor, states that the latter should ‘take measures to restrict access to information resources in the information and telecommunication networks within the competence established by the Federal Law “On Information, Information Technologies and Information Protection”’. It follows from the law that the only obligation imposed on the Roskomnadzor is to ensure restrictions on access to resources, for which there is a court blocking order.
The powers and authority of Roskomnadzor are so vague and ample that any of its actions aimed to block the prohibited resource will be considered as complying with the law. The decision of Taganskyi District Court of Moscow, of course, contains no indication of specific IP addresses of Telegram, which are subject to blocking; it only orders to restrict access to this service. Thus, the actions taken by the state body fully comply with the court’s decision, and, accordingly, are legal.
However, in this situation other resources affected by the Telegram blocking get trouble for nothing. Their litigation prospects in claims against Roskomnadzor entirely depend on whether their IP addresses were jointly used with Telegram. If so, the Russian court will probably decide in favour of the state body. After all, the alleged claims are most likely based on the recognition of actions taken by Roskomnadzor as illegal, and here court will have a good reason to recognize them as complying with the law. Sharing of electronic resources by different services is quite usual, but still unknown and mysterious for the Russian law.
Prohibit everything new
It is neither strange, nor bad. There is no need to provide for in the law every new situation that has arisen in any field. The digital economy is in its infancy and it is quite natural that it is still relatively free from state regulation. However strange it is, unfortunately, it is quite typical of Russia to prohibit everything new, even if the object of such prohibition has not existed before.
Another question is whether such regulation is proper. Even the most stringent law can not change the real state of affairs. The situation with Telegram demonstrated a well-known fact – neither the lawmakers, nor Roskomnadzor understand the essence of the Internet as such. And the point is not that the law allows blocking hundreds of random resources, but that the user access to resources such as LinkedIn or Telegram may only be disabled by cutting off the Internet.