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Арбитражный суд Москвы подтвердил: Google несёт ответственность перед законами России
© Frank Hoermann/SVEN SIMON SVEN SIMON/Globallookpress
Общество Эксклюзив

Арбитражный суд Москвы подтвердил: Google несёт ответственность перед законами России

Константин Малофеев опубликовал копию определения суда, согласно которому корпорации Google не удастся избежать наказания по иску представителей Царьграда. Google должен и будет нести ответственность перед законами России.

Учредитель телеканала Царьград Константин Малофеев опубликовал копию опеределения суда, согласно которому американской корпорации Google придётся отвечать перед законом именно в России. 

"Арбитражный суд Москвы подтвердил: Google несёт ответственность перед законами России", - подчеркнул Малофеев. 

Телеканал Царьград, незаконно заблокированный на YouTube, продолжает судиться с владельцами американского видеохостинга. Представители Google на одном из заседаний просто сбежали, чтобы не получить повестку на следующее заседание.

"Потом они заявили, что рассмотрение иска вне юрисдикции российского суда. Потому что у Google нет договорных отношений с телеканалом Царьград, - продолжил Малофеев. - Но суд вынес определение: Google обязан исполнять законы России в рамках заключаемых с пользователями интернета соглашений. Представитель Роскмнадзора в судебном процессе поддержал все исковые требования Царьграда о разблокировке канала в полном объёме". 

В завершение Константин Малофеев подчеркнул, "американская цензура СМИ на территории России недопустима".

Полный текст решения суда на английском языке также имеется в распоряжении "Первого русского".

Полный текст решения суда на английском языке:

AWARD
In the name of the Russian Federation
city of Moscow
April 20, 2021
The operative part of the Award was announced on April 13, 2021.
The Award in its entirety was produced on April 20, 2021
The Arbitrazh Court composed of:
Presiding Judge A.S. Chadov
the record of the court hearing was drawn up by Secretary A.V. Kuznetsova
has considered in court the case upon an action brought by:
NAO Tsargrad Media (OGRN 1127746435376, INN 7714874913)
to respondents: 1) Google Ireland Limited (Ireland), 2) Google LLC (USA), 3) OOO Google (OGRN 1057749528100, INN 7704582421)
Third Parties: 1) K.V. Malofeyev and 2) Roskomndazor
on holding the repudiation of the Order Form dated December 30, 2019, invalid, and on obliging the Respondents to provide access to the account,
the court hearing was attended by: in accordance with the record of the court hearing.
HAS ASCERTAINED:
NAO Tsargrad Media (“the Claimant”) brought an action to the Moscow Arbitrazh Court against Google Ireland Limited (Ireland), Google LLC (USA) and OOO Google (“the Respondents”) for holding the unilateral repudiation of the Order Form dated December 30, 2019, invalid, and for obligating the Respondents to provide access to the account.
The claim is motivated by the fact that the Respondents unreasonably repudiated the agreement. In the course of the court hearing, the representative of the Claimant supported the claims in full.
The representatives of the Respondents resisted the claims on the grounds set forth in the responses.
The court also declines the motion of Respondent Google LLC (USA) to leave the claim without consideration in accordance with par 5 part 1 Article 148 of the Russian Arbitration Procedure Code.
Subject to par 5 part 1 Article 148 of the Russian Arbitration Procedure Code, the arbitrazh court shall leave a statement of claim without consideration, if after its acceptance for the court proceedings, the court finds that there is an agreement between the parties that the dispute shall be considered by the arbitral tribunal, if any of the parties no later than the date submission of its first claim on the merits of the dispute to the arbitrazh court of first instance raises an objection on this ground that the case is to be heard in the arbitrazh court, except when the arbitrazh court finds that this agreement is invalid, became ineffective or cannot be enforced.
In accordance with clause 14.3 of the Google Platform Services Terms and Conditions being part of the Order Form for the provision of the Google Ad Manager Service, the Agreement is governed by English law and submits to the jurisdiction of the English courts in relation to any dispute (contractual or non- contractual) concerning this Agreement save that either party may apply to any court for an injunction or other relief to protect its intellectual property rights.
By implication of Article 252 of the Russian Arbitration Procedure Code, in the presence of a prorogation agreement to submit a dispute to a competent court of a foreign state, the arbitrazh court of the Russian Federation shall leave a statement of claim without consideration, if any of the parties no later than the date submission of its first claim on the merits of the dispute to the arbitrazh court of first instance raises an objection on this ground that the case is to be heard in the arbitrazh court the Russian Federation, except when the arbitrazh court finds that the prorogation agreement is invalid, became ineffective, cannot be enforced or does not provide for the exclusion of the jurisdiction of Russian arbitrazh courts (part 5 Article 3, par 5 part 1 Article 148 of the Russian Arbitration Procedure Code). These rules apply regardless whether or not a case is pending in a foreign court in a dispute between the parties to the prorogation agreement.
The general rules for determining the competence of Russian arbitrazh courts are based on the principle that there is a close link between the disputed legal relationship and the territory of the Russian Federation, so the rules of part 1 Article 247 of the Russian Arbitration Procedure Code must be interpreted given this principle.
The list of grounds for the jurisdiction of Russian arbitrazh courts that are established by paragraph 1 Article 247 of the Russian Arbitration Procedure Code is not exhaustive.
According to Article 248.1 of the Russian Arbitration Procedure Code, unless otherwise provided by an international treaty of the Russian Federation or an agreement between the parties under which dispute consideration with their involvement is referred to the jurisdiction of foreign courts, international commercial arbitrations located outside the Russian Federation, the exclusive jurisdiction of Russian arbitrazh courts in the Russian Federation includes dispute cases involving persons in respect of whom restrictive measures are applied by a foreign state, national association and/or union and/or national (transnational) institution of a foreign state or national association and/or union.
By virtue of express reference by part 4 Article 248.1 of the Russian Arbitration Procedure Code, for the purposes of applying the exclusive jurisdiction of Russian arbitrazh courts it is sufficient to apply restrictive measures against one of the parties involved in a dispute and creating obstacles to access to justice.
Accordingly, without prejudice to the stated above, given the factual circumstances of the dispute, even the application of the sanction restrictions in this matter is sufficient for applying the provisions of the exclusive jurisdiction of Russian arbitrazh courts.
Google LLC (USA) supported its second motion by the emergence of new circumstances not previously known to the Respondent that prove the groundlessness of filing of suit to the Russian arbitrazh court for consideration, namely, that the Claimant has misled the court as to it had obstacles to access to justice for the purposes of applying Article 248.1 of the Russian Arbitration Procedure Code.
The references by the Respondent to the provisions of the U.S. Code of Federal Regulations (§§ 589.506, 589.507) and the revised opinion of foreign expert J. Kim are not new circumstances for the purposes of filing the second motion to leave the statement of claim without consideration. The Respondent has failed to substantiate what circumstances prevented it from asserting these arguments in considering its first motion to leave the claims without consideration. The ruling held by the Moscow Arbitrazh Court, dated December 12, 2020, was duly challenged by the Respondents in the courts of appeal and cassation, the filing of the second motion is aimed at circumventing the procedures established by the arbitration procedure law for challenging judicial acts.
The reference by Google LLC (USA) to the fact that these circumstances became known to it after foreign expert Meredith Rathbone addressed a thematic sanctions conference is rejected by the court. The transcript of the expert's speech, as submitted to the court for review, contains no analysis of the circumstances of this case, the foreign expert herself is not a person involved in the case or an expert engaged, and therefore, the conclusions made by the expert at the conference are not relevant to the present dispute.
Given the circumstances also established in the court ruling of 18 December 2020 when considering the original motion to leave the claim without consideration, the applicant has not submitted sufficiently sound arguments to satisfy the second motion.
After examining the case materials, listening the explanations of parties’ representatives and evaluating the submitted evidence in their entirety, the court considers the claim of the Claimant should be subject to satisfaction for the following reasons.
In support of its claims, the Claimant points to the following circumstances.
The Claimant and Google LLC (USA) entered into an agreement for the use of Google services by way of the Claimant joining the Google Terms of Service, as a result of which an account tsargradtv@gmail.com was provided to the Claimant. On December 30, 2019, the Claimant and Google Ireland Limited (Ireland) entered into an Order Form for the provision of the Google Ad Manager Small Business Service (contract ID 646403) to monetize advertising on the Claimant’s TsargradTV channel. The Order Form is governed by the Service Specific Terms of Use - Google Ad Manager Service, which are an integral part of the Order Form.
On July 28, 2020, Google notified the Claimant that its account had been disabled without any opportunity to restore it due to a violation of the export laws.
The Claimant went to court, as it believes that the account termination and subsequent repudiation of the Order Form based on the sanctions imposed on the Claimant’s beneficiary are illegal.
According to Article 450 of the Russian Civil Code, upon a demand of one of the parties, the contract can be changed or terminated by a court decision in case of a material breach of the contract by the other party or in other cases stipulated by this Code, other laws or contract.
In accordance with paragraph 1 Article 451 of the Russian Civil Code, an essential change in the circumstances from which the parties proceeded, when concluding the contract, shall be a ground for its modification or termination, unless otherwise provided by the contract or following from the nature thereof.
The modification of the contract in connection with an essential change of the circumstances shall be admitted upon a court decision in extraordinary cases, when the termination of the contract contradicts public interests or entails damage to the parties, which considerably exceeds the costs that are required for the performance of the contract on the terms modified by the court.
The court has found that the Claimant validly filed its claim for invalidation of the unilateral repudiation of the Order Form of 30 December 2019.
The court declines the arguments of the Respondents set out in the responses as not supported by documentation and not corresponding to the facts of the case.
As it follows from the case materials, in pursuance of US President Executive Order 13660—Blocking Property of Certain Persons Contributing to the Situation in Ukraine, dated March 6, 2014, Mr. K.V. Malofeyev was included in the US sanction list. Similarly, in accordance with the Council Implementing Regulation (EU) No 826/2014 of 30 July 2014 Implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine, Mr. K.V. Malofeyev was included in the European Union sanction list. Since Mr. K.V. Malofeyev owns more than a 50% stake in the Claimant's charter capital, in accordance with the 50% Rule, the Claimant is also considered to be put under the restrictions (financial sanctions), which was not disputed by the Respondents in the course of judicial proceedings and is consistent with the written evidence presented to the case file (vol. 7, pp. 13-21, 31-54, 67-78).
The said restrictive measures (financial sanctions) prohibit third parties from entering into legal relationships with a person whom the restrictive measures are applied to in respect of any assets being in his ownership or owned under another recognized right, including money, controlled companies and other property.
The sanctions applied to Mr. K.V. Malofeyev and, as a consequence, the Claimant are the rules of public law of the USA and the EU, i.e. they present foreign authorities’ instructions to impose a number of public law restrictions on the rights and obligations of private persons. Public law is not of extraterritorial nature, and, therefore, the USA and EU sanctions legislation does not create rights and does not impose obligations on Russian citizens and legal entities, which is consistent with the fundamental principles of the inadmissibility of intervention in the domestic affairs of States and their sovereignty (Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty adopted by UN General Assembly Resolution 2131 (XX) of 21 December 1965).
Since the US and EU sanctions laws are contrary to public policy and, hence, should not apply in Russia, Google LLC (USA) was not entitled to terminate the account under paragraph 3 of the section ‘Suspending or terminating your access to Google services’ of the Google Terms of Use, and Google Ireland Limited (Ireland) was not entitled to suspend and/or terminate the Order Form of 30 December 2019 based on sub-clause “c.” of clause 13.2 of the Google Platform Services Terms and Conditions.
The Court also takes into account an argument of the Claimant that Google LLC (USA) had no reason to repudiate the agreement with the Claimant (terminate the account), since the performance of this agreement is not aimed at transferring the material benefits from the Claimant to the Respondent and vice versa, the prohibition of which the financial sanctions are aimed at.
The Respondents have not provided any justification for terminating the account six years after the inclusion of Mr. K.V. Malofeyev in the sanction lists. Equally, no evidence has been presented that there is a ban on the provision of Internet services by US entities to Russian legal entities located in other regions of the Russian Federation (other than the Republic of Crimea and Sevastopol), provided that such services are available to the general public at no cost to the user.
According to the section ‘Suspending or terminating access to Google services’ of the Google Terms of Use, Google reserves the right to suspend or terminate access to the services or delete a Google Account if any of these things happen:
- in case of a material or repeated breach of the Terms of Use, service-specific additional terms or policies;
- when it is required to do so to comply with a legal requirement or a court order;
- there are reasons to believe that the conduct causes harm or liability to a user, third party, or Google The examples of such conduct may include hacking, phishing, harassing, spamming, misleading others, or scraping content that doesn’t belong to you.
Subject to sub-clause “c.” of clause 13.2 of the Google Platform Services Terms and Conditions, if Google is unable to provide a Service due to any changes in law or regulations, Google may terminate and/or suspend the applicable Service upon notice to Company.
The Respondents have not provided any evidence of at least one of the aforementioned grounds for terminating the account.
Regarding the arguments of the Respondents that they could unreasonably terminate the service agreements for the provision of access to services at any time, the court comes to the following conclusions.
The Respondents base their position on the foreign law rules requiring that the sanction regulations should be applied. In the course of oral arguments the representative of Respondent OOO Google also referred to the rules of Article 782 of the Russian Civil Code.
The Claimant bases its claims on a violation by Google Ireland Limited (Ireland) of the procedure for the unmotivated repudiation of the Order Form dated 30 December 2019 and a violation by Google LLC (USA) of the account termination procedure in accordance with the Google Terms of Use.
Pursuant to the Termination for Convenience section of the Order Form, Company (the Claimant) may terminate this Order Form without cause upon 60 days’ prior notice to Google. Google may terminate this Order Form without cause upon 180 days’ prior notice to Company (the Claimant).
Google Ireland Limited (Ireland) has failed to provide the court with any evidence that the Claimant was duly notified of the agreement termination. Since the termination procedure established by the parties has not been complied with, the unilateral repudiation by Google Ireland Limited (Ireland) of the Order Form is invalid.
Similarly, the ‘Suspending or terminating your access to Google services’ section of the Google Terms of Use sets out a limited list of events when Google LLC (USA) may repudiate the agreement with the Claimant. The Respondents have failed to provide any evidence of the occurrence of any of these events, and that the requirements to the notification of agreement termination in respect of the Claimant were complied with.
In this context, the unlawful agreement repudiation, i.e. repudiation made in the absence of sufficient legal grounds, is null and void. In accordance with paragraph 51 of Resolution No. 25, dated June 23, 2015, issued by the Plenum of the Russian Supreme Court On the application by courts of certain provisions of Section I Part I of the Civil Code of the Russian Federation, if a unilateral transaction has been made when its making is not provided by the law, another legal act or an agreement between the parties or the requirements for its making have not been observed, then pursuant to the general rule, such a transaction does not entail legal consequences, which it was aimed at, i.e. it is null and void under paragraph 2 Article 168 of the Russian Civil Code.
Thus, the Respondents had no grounds to repudiate the agreement on a unilateral basis.
In pursuance of Article 65 of the Russian Arbitration Procedure Code, the Respondents have failed to provide proper evidence proving the relevance of their arguments.
The Respondents also raised objections to holding them jointly and severally liable under the stated claims. The Respondents refer to the fact that each of the agreements contains its own scope of parties’ rights and obligations.
In accordance with Article 322 of the Russian Civil Code, a joint and several duty (liability) or a joint and several claim arises, when the joint and several nature of a duty or a claim is stipulated by the contract or set up by the law, in particular when the subject of the obligation is indivisible.
Google LLC (USA) is the parent company of the Google Group, which owns Google Ireland Limited (Ireland) and indirectly OOO Google.
It follows from the evidence presented that it is impossible to divide the Claimant’s claim against each of the Co-Respondents, and, therefore, the joint and several claim is justified.
In fact, OOO Google LLC is a division of Google LLC in the Russian Federation. The official website of Google LLC www.google.com indicates OOO Google as Google office in Russia (vol. 2, pp. 50-53). Thus, OOO Google performs the functions of the Russian division for the group of the Respondents.
According to the Russian Classifier of Economic Activities, the core activity of OOO Google is “73.11 Advertising agency activities”, in particular the provision of all types of services in the field of advertising. In the Google Group, this activity is implemented through the Google Ads Service. The court notes that the subject matter of the Order Form is to provide the Claimant with access to the Google Ad Manager. The Google Ad Manager is named on the company's website as a service related to Google Ads, Ad Sense, etc.
Thus, it is not possible to separate the services rendered by OOO Google and Google Ireland Limited (Ireland) under the Order Form. While Google Ireland Limited (Ireland) transfers proceeds from using the service, OOO Google provides technical and customer service and searches for and works with advertisers in Russia. As alleged by the Claimant and not denied by the Respondents, it was OOO Google that commented the situation around the termination of the Claimant’s account in mass media. The Respondents have not provided any evidence to the contrary.
It was not possible to make the Order Form of 30 December 2009 without the Claimant having a Google account, i.e. without making an agreement with Google LLC (USA). The Respondents themselves indicate this circumstance in their written explanations (vol. 12, pp. 49-51). Google LLC (USA) and Google Ireland Limited (Ireland) are part of the same company group, the core activity of which is aimed at providing users with various Internet services.
In the course of examining the facts of the case, the court has found that the actions of the Respondents are concerted, they use the same tools to provide services (common software, service policy, etc.), and therefore, the claims against them are fundamentally indivisible, which serves the basis for imposing joint and several obligations on them to resume access of the Claimant to the account and Google services and renew the terminated agreements.
The Claimant also stated a claim for astreinte in the event of failure to execute the court award within five days from the effective date of the judicial act in the amount of 100,000 (one hundred thousand) rubles per each day of non-execution of the judicial act, starting from the sixth day from the effective day of the judicial act and until its actual execution, provided that the daily accrued astreinte doubles on a weekly basis.
In accordance with paragraph 1 Article 308.3 of the Russian Civil Code, if the debtor fails to fulfill an obligation, the creditor has the right to seek in court that the obligation should be fulfilled in kind, unless otherwise provided by the Code, other laws or the contract or derived from the essence of the obligation; upon a creditor’s demand the court has the right to award a sum of money in favor of the creditor in the event of the non-execution of the said judicial act in the amount that the court determines following the principles of equity, proportionality and inadmissibility of benefiting from unlawful or bad faith conduct.
According to the explanations given in paragraph 32 of Resolution No. 7 dated March 3, 2016, Plenum of the Russian Supreme Court, On the application by courts of some provisions of the Civil Code of the Russian Federation concerning the liability for a breach of obligations (Plenum Resolution 7), in satisfying a claimant's claim for an astreinte, the court shall indicate its amount and/or determination procedure.
The amount of an astreinte is determined by the court following the principles of equity, proportionality and inadmissibility of the debtor benefiting from unlawful or bad faith conduct (paragraph 4 Article 1 of the Civil Code of the Russian Federation). As a result of astreinte awarding, executing the judicial act must turn to be clearly more advantageous for the Respondent than non-execution thereof.
The determinations of the Constitutional Court of the Russian Federation, No. 1367 dated 27 June 2017 and No 2579-O dated 24 December 2016, indicate that the provisions of paragraph 1 Article 308. 3 of the Russian Civil Code are aimed at protecting the rights of the creditor under the obligation, in particular, by awarding the creditor a sum of money in the event of non-execution by the debtor of a judicial act on the basis of the principles of equity, proportionality and inadmissibility of benefiting from unlawful or bad faith conduct, and given the explanations set forth in Plenum Resolution 7, where it was stated that awarding an astreinte to induce the debtor to perform the obligation in kind in a timely manner is only possible upon a creditor’s application both when a court award to induce the fulfillment of the obligation in kind is rendered and subsequently when it is fulfilled in the course of enforcement proceedings; the court must take into account the circumstances that objectively prevent the execution of the judicial act on coercion to execute the obligation in kind.
It follows from the above that an astreinte unlike a classical penalty bears a public law component, since in the event of judicial act non-execution it is a measure of liability established by the court in order to further influence the debtor. A judge shall determine an astreinte amount on his inner conviction, taking into account the facts of the case and following the principles of equity, proportionality and inadmissibility of the debtor benefiting from unlawful or bad faith conduct.
In view of the foregoing, the court declines the Respondents' arguments to limit the astreinte with the terms and conditions of the Order Form and Google Terms of Use, since the Respondents unreasonably confuse a private law measure of liability (penalty) and liability for failure to perform a public law duty (astreinte). The contractual provisions do not extend to the astreinte.
Given the circumstances of the case, the court considers the amount of astreinte requested by the Claimant reasonable and be satisfied in full.
Subject to Article 64 of the Russian Arbitration Procedure Code, evidence in the case is the information, as obtained in accordance with this Code and other federal laws, about the facts, on the basis of which the arbitrazh court determines the existence or absence of the circumstances that justify the claims or objections of the persons involved in the case, as well as other circumstances relevant to due process of law. Written and physical evidence, explanations from the persons involved in the case, expert opinions, witness testimony, audio and video recordings, and other documents and materials shall be admitted as evidence.
Subject to Article 65 of the Russian Arbitration Procedure Code, each person involved in the case shall prove the circumstances which such person refers to as grounds for its claims and objections.
In accordance with Article 71 of the Russian Arbitration Procedure Code, the arbitrazh court shall deem evidence reliable, if as a result of its verification and examination it appears that the information contained in it is true.
The arbitration procedure legislation establishes the criteria for evaluating evidence as confirming the existence of some or other circumstances. The evidence based on which a person involved in the case justifies its claims and objections must be admissible, relevant and sufficient.
The attribute of evidence admissibility is provided for by the provisions of Article 68 of the Russian Arbitration Procedure Code.
In accordance with the said Article, the circumstances of the case, which under the law must be confirmed by certain evidence, cannot be confirmed in arbitrazh court by other evidence.
The sufficiency of evidence may be defined as the availability of a necessary amount of information, reliably confirming some or other circumstances of the dispute.
The absence of at least one of these attributes is a reason not to recognize the claims filed by the person involved in the case as reasoned (proven).
In this context, the court has reached a conclusion to satisfy the stated claims in full.
State duty costs in accordance with Article of the Russian Arbitration Procedure Code are charged to the Respondents.
Following Articles 8, 12, 166, 168, 180, 181, 200, 309-310 of the Civil Code of the Russian Federation, Articles 9, 65, 71, 110, 167, 170, 171, 176, 180, 181 of the Arbitration Procedure Code of the Russian Federation, the Court
HAS RESOLVED:
The application of Google LLC (USA) for leaving the claim without consideration be dismissed.
The repudiation by the Respondents of the Order Form for the provision of the Google Ad Manager Small Business Service (contract ID: 646403) dated December 30, 2019, held invalid.
Obligate the Respondents to restore access of Non-Public Joint Stock Company Tsargrad Media (OGRN 1127746435376) in the person of its authorized representatives to the account tsargradtv@gmail.com
In case of any failure to execute the award within five days from the effective date of the judicial act, recover jointly and severally from Google LLC (registration number 201727810678, US Commercial Registry, California), Google Ireland Limited (registration number 368047, Ireland Company Registry) and OOO Google (INN 7704582421) in favor of the NAO Tsargrad Media (INN 7714874913) an astreinte of 100.000 (one hundred thousand) rubles per each day of non-execution of the judicial act, starting from the sixth day from the effective date of thereof and until its actual execution, provided that that the amount of the daily accrued astreinte is doubled on a weekly basis.
Collect from Google LLC (registration number 201727810678, US Commercial Registry, California) in favor of NAO Tsargrad Media (INN 7714874913) state duty costs in the amount of 4,000 (four thousand) rubles.
Collect from Google Ireland Limited (Google Ireland Limited (registration number 368047, Ireland Company Registry) in favor of NAO Tsargrad Media (INN 7714874913) state duty costs in the amount of 4,000 (four thousand) rubles.
Collect from OOO Google LLC (INN 7704582421) in favor of NAO Tsargrad Media (INN 7714874913) (INN 7714874913) state duty costs in the amount of 4,000 (four thousand) rubles.
This Award may be appealed in the Ninth Arbitrazh Court of Appeal within one month from the date of the award.

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