Case No. 19/04
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
RULING
ON THE COMPLIANCE OF ITEMS 12, 14 AND 16 OF THE
PROCEDURE FOR CONTROL OF INFORMATION NOT TO BE
DIVULGED TO THE PUBLIC AND DISSEMINATION OF
LIMITED PUBLIC INFORMATION STORED IN PUBLIC USE
COMPUTER NETWORKS AS CONFIRMED BY RESOLUTION OF
THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA NO.
290 "ON THE CONFIRMATION OF THE PROCEDURE FOR
CONTROL OF INFORMATION NOT TO BE DIVULGED TO THE
PUBLIC AND DISSEMINATION OF LIMITED PUBLIC
INFORMATION STORED IN PUBLIC USE COMPUTER
NETWORKS" OF 5 MARCH 2003 WITH THE CONSTITUTION OF
THE REPUBLIC OF LITHUANIA AND PARAGRAPH 1 (WORDING
OF 29 AUGUST 2000) OF ARTICLE 53 OF THE REPUBLIC
OF LITHUANIA LAW ON THE PROVISION OF INFORMATION
TO THE PUBLIC
19 September 2005
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Toma Birmontienė, Egidijus Kūris, Kęstutis
Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Vytautas
Sinkevičius, Stasys Stačiokas, and Romualdas Kęstutis Urbaitis,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of:
the representatives of the Government of the Republic of
Lithuania, the party concerned, who were Sigitas Mitalauskas,
Head of the Legal Expertise Division of the Law Department of
the Ministry of the Interior of the Republic of Lithuania, and
Algimantas Stanislovaitis, Head of the Electronic Services and
Communications Division of the Information Society Development
Committee under the Government of the Republic of Lithuania,
pursuant to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Article 1 of the Law on the
Constitutional Court of the Republic of Lithuania, on 24 August
2005 in its public hearing heard Case No. 19/04 which
originated in a petition of the Vilnius City Court of the
Second District, the petitioner, requesting to investigate as
to whether Chapters VI, VII and VIII of the Procedure for
Control of Information Not to Be Divulged to the Public and
Dissemination of Limited Public Information Stored in Public
Use Computer Networks as confirmed by Resolution of the
Government of the Republic of Lithuania No. 290 "On the
Confirmation of the Procedure for Control of Information Not to
Be Divulged to the Public and Dissemination of Limited Public
Information Stored in Public Use Computer Networks" of 5 March
2003 to the extent that, according to the petitioner, the
activity of disseminators of public information is subject to
limitation, are not in conflict with Paragraph 3 of Article 25
of the Constitution of the Republic of Lithuania and Paragraph
1 of Article 53 of the Republic of Lithuania Law on the
Provision of Information to the Public.
The Constitutional Court
has established:
I
The Vilnius City Court of the Second District, the
petitioner, was investigating an administrative case. By its
ruling the said court suspended the investigation of the case
and applied to the Constitutional Court with a petition
requesting to investigate as to whether Chapters VI, VII and
VIII of the Procedure for Control of Information Not to Be
Divulged to the Public and Dissemination of Limited Public
Information Stored in Public Use Computer Networks (hereinafter
also referred to as the Procedure) as confirmed by Government
Resolution No. 290 "On the Confirmation of the Procedure for
Control of Information Not to Be Divulged to the Public and
Dissemination of Limited Public Information Stored in Public
Use Computer Networks" of 5 March 2003 (Official Gazette
Valstybės žinios, 2003, No. 24-1002) to the extent that,
according to the petitioner, the activity of disseminators of
public information is subject to limitation, are not in
conflict with Paragraph 3 of Article 25 of the Constitution and
Paragraph 1 of Article 53 of the Law on the Provision of
Information to the Public.
II
The request of the petitioner is based on the following
arguments.
After the Police Department under the Ministry of the
Interior has established a violation of the Procedure and after
it informs the information hosting service provider and/or
network service provider (Item 16.3) about this, they must, if
it is technically possible to disable access to the information
not to be divulged to the public which is stored in the server
computer, disable such access (Items 12 and 14.2); it is
considered that the information hosting service provider and/or
network service provider learns about the information not to be
divulged to the public which is in the server computer after he
is informed about this by the Police Department under the
Ministry of the Interior (Item 16). Thus, in the opinion of the
petitioner, in this case the fact whether the activity of a
public information producer or provider must be suspended or
discontinued is decided, under Item 14.2 of the Procedure, not
by a court. Meanwhile, under Paragraph 1 of Article 53 of the
Law on the Provision of Information to the Public the
activities of a producer and/or disseminator of public
information may be suspended or terminated by a court if the
producer and/or disseminator of public information violates the
provisions of this law. Therefore, in the opinion of the
petitioner, Chapters VI, VII and VIII of the Procedure to the
extent that, according to him, the activity of disseminators of
public information is subject to limitation, are in conflict
with Paragraph 1 of Article 53 of the Law on the Provision of
Information to the Public as well as with Paragraph 3 of
Article 25 of the Constitution under which freedom to express
convictions, as well as to obtain and impart information may
not be restricted other than by law.
III
1. In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from the representative of the Government, the party
concerned, who was S. Mitalauskas, Head of the Legal Expertise
Division of the Law Department of the Ministry of the Interior
of the Republic of Lithuania. It is maintained therein that the
disputed provisions of the Procedure are not in conflict with
Paragraph 3 of Article 25 of the Constitution and Paragraph 1
of Article 53 of the Law on the Provision of Information to the
Public.
1.1. S. Mitalauskas noted that the freedom of
self-expression entrenched in the Convention for the Protection
of Human Rights and Fundamental Freedoms is one of the basic
human freedoms. New information technologies such as the
internet and digital technologies create practically unlimited
opportunities to implement this freedom, since they have
created conditions for much bigger flow of information to reach
the user than ever before. On the other hand, it is also
possible to transmit, via the internet, information which is
harmful to its user. Therefore it is necessary to protect the
users, especially those who are under age, from such
information which is harmful to the physical, mental and
spiritual state of the human being and which is disseminated
via the internet. One of the means of such protection is
limitation on dissemination of information of certain content.
According to the representative of the party concerned,
the provision of Paragraph 3 of Article 25 of the Constitution
that freedom to express convictions, as well as to obtain and
impart information, may not be restricted other than by law if
it is necessary to protect the health, honour and dignity,
private life, and morals of a human being, or to defend
constitutional order, implies that freedom to seek, obtain and
impart information is not absolute; it can be limited, however
this may be done only by law. In addition, this freedom is
incompatible with criminal actions-the instigation of national,
racial, religious, or social hatred, violence and
discrimination, slander and disinformation (Paragraph 4 of
Article 25 of the Constitution). On the other hand, according
to S. Mitalauskas, the Constitution does not define in what
manner, ways and to what extent limitation on dissemination of
information is permitted.
1.2. According to the representative of the party
concerned, the guarantees of and limitations on implementation
of the constitutional human right to information are
particularised in other legal acts.
The information published on the internet is designated
for public dissemination to unlimited number of persons,
therefore it virtually matches the notion of public information
as defined in Paragraph 36 of Article 2 of the Law on the
Provision of Information to the Public. Thus, founders and
managers of internet web pages are organisers and disseminators
of public information and the provisions of the Law on the
Provision of Information to the Public, which consolidate
prohibitions to disseminate information which is not to be
divulged to the public, including, inter alia Article 20 of the
said law, which establishes what information is prohibited from
publishing in mass media, are applicable to them. On the other
hand, although the information published on the internet
virtually matches the notion of public information, the laws
that regulate the relations linked with implementation of the
right to obtain and impart information do not particularise the
procedure for ensuring the control over the information
published on the internet.
1.3. In the opinion of the representative of the party
concerned, the Procedure defines the limits of control over
dissemination of information in public use computer networks to
the extent that laws require that the publishing and/or
dissemination of the information be prohibited and the
Procedure virtually does not establish any new grounds of
limitation on dissemination of information. The provisions of
Chapter VI of the Procedure on liability of a web founder
(manager) and/or an information hosting service provider stem
from the prohibition to disseminate certain information, which
is established in laws.
1.4. According to the explanation of the representative of
the party concerned, Item 14.2 of the Procedure establishes a
duty of the information hosting service provider and of the
network service provider to disable access to the information
which is in the server computer in case the information hosting
service provider or the network service provider learns about
the information not to be divulged to the public which is
stored in the server computer, in case disabling such access is
technically possible; thus, the Procedure establishes neither a
general obligation to information hosting service providers and
network service providers to monitor the information that they
are transmitting or storing in the course of rendition of their
services, nor any general obligation to actively take interest
in facts or circumstances, which illustrate illegal activities.
The report about the established violation is submitted by the
institution specified in Item 16.3 of the Procedure. In the
opinion of S. Mitalauskas, Item 14.2 of the Procedure
establishes one of the cases where one attempts to ensure
observance of laws by ways other than by means of court action.
As the duty to disable access to the information which is in
the server computer is pre-conditioned by the prohibition
established by laws to disseminate information not to be
divulged to the public, which is established in laws, thus, in
the opinion of the representative of the party concerned, the
provisions of Chapter VII of the Procedure do not establish any
virtually new grounds of limitation on the freedom to express
one's convictions, to obtain and impart information, which are
not established in the law.
1.5. According to the representative of the party
concerned, Chapter VIII of the Procedure specifies the duties
of state institutions when they ensure the control of
information not to be divulged to the public in public use
computer networks and observance of the provisions concerning
dissemination of public information on these networks. Under
Item 16.3 of the Procedure, the Police Department under the
Ministry of the Interior is obliged to inform the information
hosting service provider or network service provider about
established violations of the prohibition to publish certain
information or to publicly disseminate it. Thereby their
attention is drawn to the said violations and possibilities are
created to resort to the measures provided for in Item 14 of
the Procedure. The submission of the statement about the
established violations is to be treated as a preventive measure
against violations of law linked with dissemination of illegal
information via the internet and it is not a measure limiting
the activity of disseminators of public information.
2. In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from A. Stanislovaitis, Head of the Electronic
Services and Communications Division of the Information Society
Development Committee under the Government of the Republic of
Lithuania. A. Stanislovaitis assented to the written
explanations of S. Mitalauskas, representative of the party
concerned, the Government.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from A. Kunčinas, Chairman of the Committee of the
Development of Information Society of the Seimas of the
Republic of Lithuania, K. Virketis, Director of the Legal
Department of the Office of the Seimas of the Republic of
Lithuania, V. Abraitis, Secretary of the Ministry of the
Interior of the Republic of Lithuania, D. Kriaučiūnas, Director
General of the European Law Department under the Ministry of
Justice of the Republic of Lithuania, Assoc. Prof. Z.
Petrauskas, Head of the Department of International and EU Law
of the Faculty of Law, Vilnius University, Dr. M. Stonkienė, a
lecturer of the Chair of Information and Communication of the
Faculty of Communication, Vilnius University, and Dr. A.
Augustinaitis, Director of the Institute of Administration of
Information Society of the Faculty of Public Administration,
Mykolas Romeris University.
V
At the Constitutional Court hearing the representatives of
the party concerned, the Government, who were S. Mitalauskas
and A. Stanislovaitis, reiterated the arguments set forth in
their written explanations.
The Constitutional Court
holds that:
I
1. The petitioner requests to investigate as to whether
Chapters VI, VII and VIII of the Procedure for Control of
Information Not to Be Divulged to the Public and Dissemination
of Limited Public Information Stored in Public Use Computer
Networks as confirmed by Government Resolution No. 290 "On the
Confirmation of the Procedure for Control of Information Not to
Be Divulged to the Public and Dissemination of Limited Public
Information Stored in Public Use Computer Networks" of 5 March
2003 to the extent that, according to the petitioner, the
activity of disseminators of public information is limited, are
not in conflict with Paragraph 3 of Article 25 of the
Constitution and Paragraph 1 of Article 53 of the Law on the
Provision of Information to the Public.
2. On 5 March 2003, the Government adopted Resolution No.
290 "On the Confirmation of the Procedure for Control of
Information Not to Be Divulged to the Public and Dissemination
of Limited Public Information Stored in Public Use Computer
Networks" by Item 1 whereof it confirmed the Procedure for
Control of Information Not to Be Divulged to the Public and
Dissemination of Limited Public Information Stored in Public
Use Computer Networks. The said Government resolution went into
effect on 8 March 2003.
3. Chapters VI, VII and VIII of the Procedure provide:
"VI. LIABILITY FOR THE CONTENT OF AN INTERNET WEB PAGE
11. The founder (manager) of an internet web page shall be
liable for the content of the said internet web page. When the
founder and manager of the internet web page is not the same
person, the manager shall be liable for the content of the
internet web page.
12. The information hosting service provider shall be
liable for information that he is storing at the request of the
founder (manager) of an internet web page and/or the recipient
of the service only in the following cases:
12.1. provided he renders the service while possessing
factual knowledge of the violations of this Procedure, which
are perpetrated by making use of the services rendered by him
or his server computer;
12.2. provided he, having learned about the information
not to be divulged to the public which is stored in his server
computer does not remove it immediately or does not disable
access to it, while taking regard of the provisions of Item 14
of the Procedure.
VII. DUTIES OF INFORMATION HOSTING SERVICE
PROVIDERS AND NETWORK SERVICE PROVIDERS
13. Information hosting service providers shall submit,
free of charge, the following information to entities of
operational activities, which is recorded in order to ensure
their economic activity:
13.1. system record files of the services related with
information hosting in the server computer;
13.2. data of persons to whom the information hosting
service provider renders regular services.
14. Information hosting service providers and/or network
service providers must disable access to the information which
is in the server computer in the following cases:
14.1. provided this is required by a court;
14.2. provided the information hosting service provider or
the network service provider learns about the information not
to be divulged to the public which is in the server computer
and when it is technically possible to disable such access.
15. While concluding agreements on rendition of services
related to public use computer networks, information hosting
service providers must inform the recipients of the service
about the requirements of the Procedure.
VIII. DUTIES OF STATE INSTITUTIONS
16. The Police Department under the Ministry of the
Interior must:
16.1. ensure proper functioning of the assigned special
telephone number and electronic mail address so that interested
persons might be able to report about violations of this
Procedure;
16.2. having established a violation of this Procedure,
inform the Information Society Development Committee under the
Government of the Republic of Lithuania and other interested
institutions, while in case the violation was committed by an
electronic mass media, also report it to the Commission on
Ethics of Journalists and Publishers as well as the Journalist
Ethics Inspector;
16.3. inform the information hosting service provider or
the network service provider about the established violation.
17. Having established a violation of this Procedure, the
Lithuanian Criminal Police Bureau shall conduct investigation
within its competence and under procedure established by laws.
18. Other entities of operational activity, after they
receive a report about a possible violation of this Procedure,
shall inform the Police Department under the Ministry of the
Interior and shall conduct investigation under procedure
established in laws.
19. The Information Society Development Committee under
the Government of the Republic of Lithuania:
19.1. shall collect, manage and analyse information about
violations of this Procedure;
19.2. shall organise meetings between network service
providers and users of public use computer networks so that
their associations might be established and an ethics code of
network service providers would be drafted;
19.3. shall organise tests of filters and shall announce
recommendations on suitability of their use;
19.4. shall promote, together with the Ministry of the
Interior, international cooperation so that it might be
possible to prevent dissemination of information via public use
computer networks, which is not to be divulged to the public or
which is limited, and shall participate in corresponding
international programmes and projects;
19.5. shall, if necessary, submit an account to the
Government of the Republic of Lithuania on how this Procedure
is being followed, also proposals concerning amendment and
supplement of the legal acts related to dissemination of
information in public use computer networks."
4. On 15 June 2004, the Government adopted Resolution No.
750 "On Amending Resolution of the Government of the Republic
of Lithuania No. 290 'On the Confirmation of the Procedure for
Control of Information Not to Be Divulged to the Public and
Dissemination of Limited Public Information Stored in Public
Use Computer Networks' of 5 March 2003" by Item 2 whereof it
amended Item 6 of the Procedure and recognised Item 7 of the
Procedure as no longer valid; by this Government resolution
disputed Chapters VI, VII and VIII were not amended and/or
supplemented.
5. Although the petitioner requests to investigate as to
whether Chapters VI, VII and VIII of the Procedure for Control
of Information Not to Be Divulged to the Public and
Dissemination of Limited Public Information Stored in Public
Use Computer Networks as confirmed by Government Resolution No.
290 "On the Confirmation of the Procedure for Control of
Information Not to Be Divulged to the Public and Dissemination
of Limited Public Information Stored in Public Use Computer
Networks" of 5 March 2003 to the extent that, according to the
petitioner, the activity of disseminators of public information
is subject to limitation, are not in conflict with Paragraph 3
of Article 25 of the Constitution and Paragraph 1 of Article 53
of the Law on the Provision of Information to the Public, it is
clear from the arguments set forth in the petition of the
petitioner that he has doubts whether not all items of Chapter
VI, not all items of Chapter VII and not all items of Chapter
VIII of the Procedure are in conflict with Paragraph 3 of
Article 25 of the Constitution and Paragraph 1 of Article 53 of
the Law on the Provision of Information to the Public, but only
- Item 12 (set forth in Chapter VI) of the Procedure;
- the provision "Information hosting service providers
and/or network service providers must disable access to the
information which is in the server computer in the following
cases: <...> 14.2. provided the information hosting service
provider or the network service provider learns about the
information not to be divulged to the public which is in the
server computer and when it is technically possible to disable
such access" of Item 14 (set forth in Chapter VII) of the
Procedure;
- the provision "The Police Department under the Ministry
of the Interior must: <...> 16.3. inform the information
hosting service provider or the network service provider about
the established violation" of Item 16 (set forth in Chapter
VIII) of the Procedure.
6. As mentioned, the petitioner requests to investigate as
to whether the disputed provisions of the Procedure are not in
conflict with inter alia Paragraph 1 of Article 53 of the Law
on the Provision of Information to the Public. At the time of
the adoption of Government Resolution No. 290 "On the
Confirmation of the Procedure for Control of Information Not to
Be Divulged to the Public and Dissemination of Limited Public
Information Stored in Public Use Computer Networks" of 5 March
2003, Paragraph 1 of Article 53 of the Law on the Provision of
Information to the Public was set forth in the wording of 29
August 2000.
7. Subsequent to the petition of the petitioner, in the
constitutional justice case at issue the Constitutional Court
will investigate as to whether Item 12, the provision
"Information hosting service providers and/or network service
providers must disable access to the information which is in
the server computer in the following cases: <...> 14.2.
provided the information hosting service provider or the
network service provider learns about the information not to be
divulged to the public which is in the server computer and when
it is technically possible to disable such access" of Item 14,
and the provision "The Police Department under the Ministry of
the Interior must: <...> 16.3. inform the information hosting
service provider or the network service provider about the
established violation" of Item 16 of the Procedure for Control
of Information Not to Be Divulged to the Public and
Dissemination of Limited Public Information Stored in Public
Use Computer Networks as confirmed by Item 1 of Government
Resolution No. 290 "On the Confirmation of the Procedure for
Control of Information Not to Be Divulged to the Public and
Dissemination of Limited Public Information Stored in Public
Use Computer Networks" of 5 March 2003 are not in conflict with
Paragraph 3 of Article 25 of the Constitution and Paragraph 1
(wording of 29 August 2000) of Article 53 of the Law on the
Provision of Information to the Public.
II
1. Article 25 of the Constitution provides:
"The human being shall have the right to have his own
convictions and freely express them.
The human being must not be hindered from seeking,
obtaining, and imparting information as well as ideas.
Freedom to express convictions, as well as to obtain and
impart information, may not be restricted other than by law, if
it is necessary to protect the health, honour and dignity,
private life, and morals of a human being, or to defend
constitutional order.
Freedom to express convictions and impart information
shall be incompatible with criminal actions-the instigation of
national, racial, religious, or social hatred, violence and
discrimination, slander and disinformation.
The citizen shall have the right to obtain any available
information which concerns him from State institutions in the
manner established by law."
2. The provisions of Article 25 of the Constitution
constitute the constitutional basis of freedom of information.
They are interrelated and supplement each other. The
constitutional freedom of information is inseparable from the
constitutional freedom of convictions and their expression and
is a condition of the latter.
While construing the content of the freedom of information
entrenched in the Constitution, as an innate freedom of the
human being, the Constitutional Court has held that this
freedom is an important pre-condition for the implementation of
various rights and freedoms of the person which are entrenched
in the Constitution, since the person can implement most of his
constitutional rights and freedoms in an all-sufficient manner
only if he has the right to seek, obtain and impart information
unhindered. The Constitution guarantees and safeguards the
interest of the public to be informed (Constitutional Court
rulings of 23 October 2002, 26 January 2004 and 8 July 2005).
3. Under the Constitution, it is not permitted to
establish any such legal regulation whereby, by entrenching the
guarantees of implementation of freedom of information,
preconditions would be created to violate other constitutional
values and their balance. The freedom to seek, obtain and
impart information is not an absolute one (Constitutional Court
rulings of 20 April 1995, 19 December 1996, 23 October 2002,
and 26 January 2004).
3.1. The provision of Paragraph 4 of Article 25 of the
Constitution that freedom to express convictions and impart
information shall be incompatible with criminal actions-the
instigation of national, racial, religious, or social hatred,
violence and discrimination, slander and disinformation, means
that prohibition to disseminate information of the said content
is absolute. Thus, the constitutional concept of freedom of
information does not encompass the alleged freedom, which
denies the constitutional values in essence, to perpetrate the
criminal actions specified in Paragraph 4 of Article 25 of the
Constitution, i.e. to disseminate such thoughts, convictions,
etc. by which one instigates national, racial, religious, or
social hatred, violence and discrimination, by which persons
are slandered or where society or its individual members are
disinformed otherwise (Constitutional Court ruling of 8 July
2005). The concept of constitutional freedom of information
does not encompass war propaganda, either, which is prohibited
by Paragraph 2 of Article 135 of the Constitution.
The provision of Paragraph 4 of Article 25 of the
Constitution that freedom to express convictions and impart
information shall be incompatible with criminal actions-the
instigation of national, racial, religious, or social hatred,
violence and discrimination, slander and disinformation-also
means that that the legislator must legislatively establish the
legal regulation that the instigation of national, racial,
religious, or social hatred, violence and discrimination,
slander and disinformation, if by their means someone attempts
to deny corresponding constitutional values, would be
prosecuted as criminal actions and legal liability would be
established for them as criminal actions.
Alongside, it needs to be noted that the said provisions
of Paragraph 4 of Article 25 of the Constitution, inter alia
the formula "criminal actions", cannot be construed only
linguistically, i.e. as meaning that, purportedly, the
constitutional freedom to express convictions and impart
information is incompatible with only such actions, for which
laws provide criminal liability. The said constitutional
freedom is also incompatible with dissemination of such
thoughts, convictions, etc., which instigate national, racial,
religious, or social hatred, violence and discrimination, by
which persons are slandered and society or its individual
members are disinformed otherwise, for which laws provide not
only criminal but other liability. Thus, under the
Constitution, the constitutional freedom to express convictions
and impart information is incompatible with any actions which
are contrary to law, by which national, racial, religious, or
social hatred, violence and discrimination are instigated and
by which persons are slandered and society or its individual
members are disinformed otherwise. If the said provision of
Paragraph 4 of Article 25 of the Constitution, inter alia its
formula "criminal actions", were construed differently (i.e. in
a narrowing manner), one would disregard the constitutional
imperative of an open, just, harmonious civil society, the
constitutional principle of a state under the rule of law and
other provisions of the Constitution.
3.2. Under Paragraph 3 of Article 25 of the Constitution,
freedom to express convictions, as well as to obtain and impart
information, may not be restricted other than by law, if it is
necessary to protect the constitutional values specified in
this paragraph, i.e. the health, honour and dignity, private
life, and morals of a human being, and constitutional order. It
should be emphasised that the list of the constitutional values
enumerated in Paragraph 3 of Article 25 of the Constitution
cannot be construed as a thorough and final one, i.e., as not
permitting to limit freedom to obtain and impart information in
cases where it is necessary to protect other constitutional
values, which are not mentioned expressis verbis in Paragraph 3
of Article 25 of the Constitution.
It also needs to be noted that the freedom of information
entrenched in Article 25 of the Constitution may be temporarily
limited after martial law or a state of emergency is imposed
(Article 145 of the Constitution).
In its rulings, the Constitutional Court has held many a
time that under the Constitution it is permissible to limit
human rights and freedoms, thus also the right to express
convictions, as well as to obtain and impart information and
ideas, if the following conditions are followed: this is done
by the law; the limitations are necessary in a democratic
society in order to protect the rights and freedoms of other
persons and values entrenched in the Constitution, as well as
constitutionally important objectives; by the limitations one
does not deny the nature nor the essence of the rights and
freedoms; one follows the constitutional principle of
proportionality.
In the context of the constitutional justice case at
issue, it needs to be noted that the legislator, under the
Constitution, has a duty to establish such legal regulation
which would ensure that public authority (its institutions,
officials) will be able to promptly resort to the actions
whereby the deeds could be prevented by which, under the cover
of freedom of information, one encroaches upon the values
entrenched in and protected as well as defended by the
Constitution.
4. The provisions of Paragraphs 3 and 4 of Article 25 of
the Constitution are also to be construed in the context of the
provision of Paragraph 1 of Article 30 of the Constitution that
the person whose constitutional rights or freedoms are violated
shall have the right to apply to court. The right of the person
to apply to court due to a fact that, in his opinion, his
freedom of information is limited, means that the person has
the right to challenge any decision of public authority (its
institution or official) in court, which, in his opinion,
limits his right to seek, obtain or disseminate information.
Under the Constitution, the legislator has a duty to
legislatively establish the legal regulation which would ensure
efficient protection of this right.
It also needs to be noted that the constitutional right of
the person to apply to court due to a fact that, in his
opinion, his freedom of information is limited also implies his
right to raise the issue of constitutionality of limitations
and/or prohibitions of freedom of information established in
the legal acts applicable in a corresponding case.
5. As mentioned, the constitutional freedom of information
is an innate freedom of the human being. In its rulings the
Constitutional Court has held more than once that everything
that is linked with human rights and freedoms must be regulated
by means of laws; such laws must be in compliance with the
Constitution. Therefore, the legal regulation defining the
limits on the implementation of freedom of information must be
established by means of a law.
Under Paragraph 3 of Article 25 of the Constitution, the
legislator must, by means of a law, define the content of the
information the dissemination of which is either prohibited or
limited, as well as the ways by means of which dissemination of
certain information is prohibited, as well as other conditions
of dissemination of corresponding information if this in any
manner limits freedom of information. The legislator also must,
by means of a law, establish: liability for disregard of the
said prohibitions and limitations, including that for
dissemination of information the dissemination of which is
prohibited; entities which enjoy powers to supervise the
observance of the prohibitions and/or limitations, which are
established by laws, to disseminate certain information;
entities which apply liability for disregard of the
prohibitions and/or limitations, which are established by laws,
to disseminate certain information; efficient measures of
judicial protection of freedom of information.
It is worth noticing that the Constitution does not
prevent regulation of certain relations linked with obtaining
and dissemination of information, including the relations
linked with supervision and control of the prohibitions,
established by means of laws, to disseminate information and/or
limitations on dissemination of information also by
substatutory legal acts, inter alia Government resolutions. In
the context of the constitutional justice case at issue it
needs to be emphasised that the Government, while regulating
the aforesaid relations by means of its resolutions, cannot
establish any such legal regulation which is not based on the
Constitution and laws, nor any such legal regulation which
competes with that established by laws.
III
1. The purpose of the Procedure for Control of Information
Not to Be Divulged to the Public and Dissemination of Limited
Public Information Stored in Public Use Computer Networks as
confirmed by Item 1 of Government Resolution No. 290 "On the
Confirmation of the Procedure for Control of Information Not to
Be Divulged to the Public and Dissemination of Limited Public
Information Stored in Public Use Computer Networks" of 5 March
2003 is to establish the provisions of control of information
not to be divulged to the public, which is in public use
computer networks, and those regarding dissemination of limited
public information in these networks, as well as the
implementation of such provisions and control of their
observance (Item 2 of the Procedure).
Item 3 of the Procedure provides that this legal act is
applicable to entities of law of the Republic of Lithuania, as
well as entities of law of foreign states, which, although do
not reside (are not established) in the territory of the
Republic of Lithuania, concentrate all their activity related
with dissemination of public information in public use computer
networks and/or make use of services of network service
providers that are registered in the Republic of Lithuania
and/or services of information hosting service providers
operating in the Republic of Lithuania, in order to disseminate
public information.
2. Item 1 of the Procedure indicates that the Procedure
was prepared while following the provisions of Decision No.
276/1999/EC of the European Parliament and of the Council of 25
January 1999 adopting a multiannual Community action plan on
promoting safer use of the Internet by combating illegal and
harmful content on global networks, the Republic of Lithuania
Law on the Provision of Information to the Public, the Republic
of Lithuania Law on the Protection of Minors against
Detrimental Effect of Public Information, the Republic of
Lithuania Law on State Secrets and Official Secrets and of
other legal acts.
3. By Decision No. 276/1999/EC of the European Parliament
and of the Council of 25 January 1999, which was indicated in
Item 1 of the Procedure, a multiannual Community action plan on
promoting safer use of the Internet by combating illegal and
harmful content on global networks was adopted. The said
decision inter alia emphasised the necessity of creating a
safer internet space and of limitation on dissemination of
unlawful information on the Internet.
In this context it needs to be noted that on 8 June 2000
the European Parliament and the Council adopted Directive
2000/31/EC on certain legal aspects of information society
services, in particular electronic commerce, in the Internal
Market ("Directive on electronic commerce") which went into
effect on 14 July 2000. This directive recommends that the
states adopt such legal acts which could promote rendition of
information society services, especially electronic commerce
services, which would establish the requirements that would
prevent dissemination of information harmful to society
(minors).
Under the said directive of the European Parliament and of
the Council inter alia the services which constitute
transmission of information via communication networks,
allowing access to communication networks or placing of
information submitted by the recipient of the service on the
Internet, are attributed to information society services.
Directive 2000/31/EC of the European Parliament and of the
Council provides that the service provider is any natural or
legal person providing an information society service (Article
2.b); that the provider of information society services is
exempted from liability for information only where the activity
of the information society service provider is limited to
technical process of operating and giving access to a
communication network over which information made available by
third parties is transmitted or temporarily stored, for the
sole purpose of making the transmission more efficient; this
activity is of a mere technical, automatic and passive nature,
which implies that the information society service provider has
neither knowledge of nor control over the information which is
transmitted or stored (Item 42 of the Preamble).
In the context of the constitutional justice case at issue
it needs to be noted that Article 14 ("Hosting") of Directive
2000/31/EC of the European Parliament and of the Council
obliges Member States to ensure that the service provider is
not liable for the information stored at the request of a
recipient of the service, on condition that: (a) the provider
does not have actual knowledge of illegal activity or
information and, as regards claims for damages, is not aware of
facts or circumstances from which the illegal activity or
information is apparent; or (2) the provider, upon obtaining
such knowledge or awareness, acts expeditiously to remove or to
disable access to the information. Member States do not impose
a general obligation on providers, when providing the services
covered inter alia by Article 14 of Directive 2000/31/EC of the
European Parliament and of the Council, to monitor the
information which they transmit or store, nor a general
obligation actively to seek facts or circumstances indicating
illegal activity (Paragraph 1 of Article 15). Member States may
establish obligations for information society service providers
promptly to inform the competent public authorities of alleged
illegal activities undertaken or information provided by
recipients of their service or obligations to communicate to
the competent authorities, at their request, information
enabling the identification of recipients of their service with
whom they have storage agreements (Paragraph 2 of Article 15).
Member States shall ensure that court actions available under
national law concerning information society services'
activities allow for the rapid adoption of measures, including
interim measures, designed to terminate any alleged
infringement and to prevent any further impairment of the
interests involved (Paragraph 1 of Article 18). Courts or
administrative authorities can adopt decisions requiring the
termination or prevention of any infringement, including the
removal of illegal information or the disabling of access to it
(Item 45 of the Preamble).
4. Paragraph 1 (wording of 29 August 2000) of Article 20
of the Law on the Provision of Information to the Public
provides that it shall be prohibited to publish in the mass
media information which shall incite to change the
constitutional order of the Republic of Lithuania through the
use of force; instigate attempts against the sovereignty and
territorial integrity of the Republic of Lithuania; instigate
war, national, racial, religious and social discord and gender
enmity and hatred; disseminate, propagate or advertise
pornography as well as propagate and/or advertise sexual
services and sexual deviations; propagate and/or advertise
narcotic or psychotropic substances. Paragraph 2 of Article 20
of the same law provides that dissemination of disinformation
and information which is slanderous, insulting to a person and
degrading to the personal honour and dignity of a person, shall
be prohibited, while Paragraph 3 whereof establishes that it
shall be prohibited to disseminate information in violation of
the presumption of innocence or which may obstruct impartiality
of the judiciary authorities.
5. It was established in Paragraph 1 (wording of 25
November 1999) of Article 1 of the Law on State Secrets and
Official Secrets that this law shall regulate classifying,
keeping, using, declassifying, security co-ordination and
control of information which comprises state or official
secrets. It was established in Paragraph 1 of Article 2 of the
same law that classified information means information
concerning the existence of documents, works, products or other
objects and essence or contents thereof, which are considered
by the subject of secrets as a state or official secret, and
the documents, works, products or other objects are themselves
considered to be that same type of secret, if these objects or
information need to be protected against loss or illegal
disclosure.
6. Article 1 of the Law on the Protection of Minors
against Detrimental Effect of Public Information (wording of 10
September 2002) consolidates that this law shall establish the
criteria of public information, which might cause physical,
mental or moral detriment to the development of minors, the
procedure of making available to the public and dissemination
thereof and also, the rights, obligations and liability of the
producers and disseminators of such information as well as of
their owners, journalists and institutions regulating their
activities.
Paragraph 1 of Article 4 and Article 5 of the Law on the
Protection of Minors against Detrimental Effect of Public
Information establish what information is detrimental to
physical, mental or moral development of minors. The said law
either prohibits or limits public dissemination of such
information.
7. Prohibitions to publish information of certain content,
as well as limitations on publication of certain information
are also established by other laws-the Code of Administrative
Violations of Law of the Republic of Lithuania, the Criminal
Code of the Republic of Lithuania, the Republic of Lithuania
Law on Legal Protection of Personal Data, the Republic of
Lithuania Law on the Health System, etc.
Laws also establish liability for disregard of
prohibitions to publish information of certain content or
limitations on public announcement of certain information which
are established in laws. For example, under the Criminal Code,
it shall be prohibited to disseminate information which incites
to violate the sovereignty of the Republic of Lithuania through
the use of force-to change its constitutional order, to
overthrow its lawful power, to encroach upon its independence
or to infringe its territorial integrity (Article 122), to
illegally dispose of information which constitutes a state
secret (Article 124), to reveal a state secret (Article 125),
to abet against a group of any nation, race, sex, religion or
any other group (Article 170), to disseminate information
instigating or inciting terrorism (Article 2501), to dispose
(produce, acquire, keep, demonstrate etc.) of items of
pornographic content (Article 309), to disseminate information
about an individual which is untrue (Article 154), to
disseminate computer information, which is protected by laws,
about a natural or legal person (Article 198) etc.; the Code of
Administrative Violations of Law establishes prohibitions to
keep, distribute or publicly demonstrate information production
propagating national, racial or religious hatred (Article
21412), to violate the procedure of distribution of printed
matter of erotic and violent nature (Article 214), to
disseminate public information which is detrimental to
development of minors and announcement and dissemination of
which is subject to limitation (Article 21419) etc.
In the context of the constitutional justice case at
issue, it needs to be noted also that laws, inter alia the
Republic of Lithuania Law on Police Activities and the Republic
of Lithuania Law on Operational Activities, establish powers of
certain state institutions (officials) to resort to actions
which would prevent such deeds by which requirements
established in laws are disregarded, thus also prohibitions
established in laws to disseminate certain information and/or
limitations on dissemination of certain information. One of
such state institutions is the Police Department under the
Ministry of the Interior indicated in the Law on Police
Activities.
8. The aforementioned legal regulation established in laws
is not a matter of investigation in this constitutional justice
case.
9. Summing up, it must be held that laws define the
content of information whose dissemination is prohibited or
whose dissemination is subject to limitation and the manner by
which it is prohibited to disseminate certain information. Laws
also provide for liability for disregard of the said
prohibitions and limitations, including liability for
dissemination of information whose dissemination is prohibited.
Laws also establish entities which have powers to supervise how
the prohibitions and/or limitations to disseminate certain
information that are established in laws are observed as well
as entities which apply liability for disregard of the
prohibitions and/or limitations to disseminate certain
information that are established in laws.
10. In the context of the constitutional justice case at
issue it needs to be specially emphasised that, under the
Constitution, all persons have a duty not to disseminate any
such information whose dissemination is prohibited by laws, as
well as a duty not to violate the procedure for dissemination
of information subject to limitation. Persons who become aware
of the fact that they in any manner participate in
disseminating information whose dissemination is prohibited by
laws or that they contribute to dissemination of such
information otherwise, or that they in any way violate the
procedure for dissemination of information whose dissemination
is limited by the law, must immediately discontinue such
activity.
In this context one is to mention that, as already held in
this Ruling of the Constitutional Court, the person has a
constitutional right to apply to court due to a fact that, in
his opinion, his freedom of information is limited also implies
his right to raise the issue of constitutionality of
limitations and/or prohibitions of freedom of information
established in the legal acts applicable in a corresponding
case.
IV
1. While construing the provision "The Police Department
under the Ministry of the Interior must: <...> 16.3. inform the
information hosting service provider or the network service
provider about the established violation" of Item 16 of the
Procedure in the context of the entire legal regulation
established in the Procedure, it is to be held that it means
that the Police Department under the Ministry of the Interior,
after it has established a violation of the Procedure committed
by making use of services of the information hosting service
provider and/or network service provider or by making use of
their server computer, must inform the information hosting
service provider or network service provider about this.
2. While construing the provision "Information hosting
service providers and/or network service providers must disable
access to the information which is in the server computer in
the following cases: <...> 14.2. provided the information
hosting service provider or the network service provider learns
about the information not to be divulged to the public which is
in the server computer and when it is technically possible to
disable such access" of Item 14 of the Procedure in the context
of the entire legal regulation established in the Procedure,
inter alia when relating it to the provision "The Police
Department under the Ministry of the Interior must: <...> 16.3.
inform the information hosting service provider or the network
service provider about the established violation" of Item 16 of
the Procedure, it is to be held that the said provision of Item
14 of the Procedure means that the information hosting service
provider and/or network service provider must disable access to
the information not to be divulged to the public, which is in
the server computer, if he learns from the Police Department
under the Ministry of Interior or other sources about the
information which is not to be divulged to the public stored in
his server computer and provided disabling such access is
technically possible.
3. Item 12 of the Procedure provides:
"12. The information hosting service provider shall be
liable for information that he is storing at the request of the
founder (manager) of an internet web page and/or the recipient
of the service only in the following cases:
12.1. provided he renders the service while possessing
factual knowledge of the violations of this Procedure, which
are perpetrated by making use of the services rendered by him
or his server computer;
12.2. provided he, having learned about the information
not to be divulged to the public which is stored in his server
computer does not remove it immediately or does not disable
access to it, while taking regard of the provisions of Item 14
of the Procedure."
While construing Item 12 of the Procedure in the context
of the entire legal regulation of the Procedure, inter alia
when relating it with the provision "The Police Department
under the Ministry of the Interior must: <...> 16.3. inform the
information hosting service provider or the network service
provider about the established violation" of Item 16 of the
Procedure and with the provision "Information hosting service
providers and/or network service providers must disable access
to the information which is in the server computer in the
following cases: <...> 14.2. provided the information hosting
service provider or the network service provider learns about
the information not to be divulged to the public which is in
the server computer and when it is technically possible to
disable such access" of Item 14 of the Procedure, it is to be
held that the provisions of Item 12 of the Procedure mean that
the information hosting service provider is liable for
information that he is storing at the request of the founder
(manager) of an internet web page and/or the recipient of the
service only in the following cases: (1) when he, having
learned from the Police Department under the Ministry of the
Interior or from other sources about a violation of the
Procedure committed by making use of services of the
information hosting service provider and/or network service
provider or by making use of their server computer, continues
rendering such services; (2) when he, having learned from the
Police Department under the Ministry of the Interior or from
other sources about the information not to be divulged to the
public stored in his server computer, does not delete it
immediately or does not disable access to it, provided it is
technically possible to do so.
It needs to be noted that the legal regulation established
in Item 12 of the Procedure does not mean that the information
hosting service provider and/or network service provider can be
held liable solely on the grounds of Item 12 of the Procedure:
for storing the information indicated in the said item the
information hosting service provider is liable only according
to the laws establishing liability for storing, dissemination
etc. of information which, according to laws, is not to be
divulged to the public.
V
On the compliance of Item 12, the provision "Information
hosting service providers and/or network service providers must
disable access to the information which is in the server
computer in the following cases: <...> 14.2. provided the
information hosting service provider or the network service
provider learns about the information not to be divulged to the
public which is in the server computer and when it is
technically possible to disable such access" of Item 14, and
the provision "The Police Department under the Ministry of the
Interior must: <...> 16.3. inform the information hosting
service provider or the network service provider about the
established violation" of Item 16 of the Procedure for Control
of Information Not to Be Divulged to the Public and
Dissemination of Limited Public Information Stored in Public
Use Computer Networks as confirmed by Government Resolution No.
290 "On the Confirmation of the Procedure for Control of
Information Not to Be Divulged to the Public and Dissemination
of Limited Public Information Stored in Public Use Computer
Networks" of 5 March 2003 with Paragraph 1 (wording of 29
August 2000) of Article 53 of the Law on the Provision of
Information to the Public.
1. Paragraph 1 (wording of 29 August 2000) of Article 53
of the Law on the Provision of Information to the Public
provides: "The activities of a producer and/or disseminator of
public information may be temporarily suspended, except in the
instance indicated in Paragraph 2 of this Article, or
terminated at the initiative of the proprietor of a producer
and/or disseminator of public information or of the court when
the producer and/or disseminator violates provisions of this
Law."
Paragraph 2 (wording of 29 August 2000) of Article 53 of
the Law on the Provision of Information to the Public, which is
indicated in Paragraph 1 of Article 53 of the Law, inter alia
provides that the Lithuanian Radio and Television Commission,
too, may, in the cases provided for in Paragraph 13 of Article
31 of this law, temporarily suspend the activities of licensed
broadcasters for violations of provisions of the Law on the
Provision of Information to the Public.
2. While deciding whether the disputed provisions of the
Procedure were not in conflict with Paragraph 1 (wording of 29
August 2000) of Article 53 of the Law on the Provision of
Information to the Public, one has to elucidate to what
entities the provisions of Paragraph 1 (wording of 29 August
2000) of Article 53 of the Law on the Provision of Information
to the Public, and to what entities the provisions of the
Procedure, are to be applied.
3. As mentioned, under Paragraph 1 (wording of 29 August
2000) of Article 53 of the Law on the Provision of Information
to the Public the activities of a producer and/or disseminator
of public information may be temporarily suspended or
terminated.
Under Paragraph 35 (wording of 29 August 2000) of Article
2 of the Law on the Provision of Information to the Public, the
producer of public information is a publishing house,
broadcaster, movie, sound or video studio, information agency,
editorial office or other person, engaged in the production of
public information.
Under Paragraph 36 (wording of 29 August 2000) of Article
2 of the Law on the Provision of Information to the Public, the
disseminator of public information is a person who broadcasts,
rebroadcasts, sells or disseminates by other means, public
information to the public.
4. It was established in Paragraph 2 (wording of 29 August
2000) of Article 23 of the Law on the Provision of Information
to the Public that natural persons of the Republic of Lithuania
and foreign states and all types of enterprises and
organisations which have established an enterprise or a branch
thereof in the Republic of Lithuania in accordance with the
procedure established by the law, with the exception of the
persons stipulated in Paragraphs 4, 5 and 6 of this article and
other laws, may become producers and/or disseminators of public
information. Under Article 25 (wording of 29 August 2000) of
the same law, the producers and disseminators of public
information shall be registered in the Register of Enterprises
of the Republic of Lithuania according to the procedure
established by laws.
5. It is to be held that at the time of adoption and entry
into effect of Government Resolution No. 290 "On the
Confirmation of the Procedure for Control of Information Not to
Be Divulged to the Public and Dissemination of Limited Public
Information Stored in Public Use Computer Networks" of 5 March
2003 whereby the Procedure for Control of Information Not to Be
Divulged to the Public and Dissemination of Limited Public
Information Stored in Public Use Computer Networks was
confirmed, the notions "producer of public information" and
"disseminator of public information" used by the Law on the
Provision of Information to the Public did not include all
persons who in any way participate in disseminating information
or contribute to its dissemination otherwise.
6. The notions "information hosting service provider" and
"network service provider" are used in the disputed provision
of the Procedure, which are not used in Paragraph 1 (wording of
29 August 2000) of Article 53 of the Law on the Provision of
Information to the Public.
Under Item 4 of the Procedure, the "information hosting
service provider" is a person who in fact renders internet web
hosting services in public use computer networks. Under the
same item, the "network service provider" is a legal person
registered in the Republic of Lithuania who renders services of
information transmission via public use computer networks or
those of access to these networks.
It is also established in the Procedure that dissemination
of information in public use computer networks is transmission
of information in electronic media or other internet webs,
sending information by electronic mail to an undefined number
of recipients or according to prior made lists, its
dissemination in electronic conferences or transmission to
society in other publicly accessible way in public use computer
networks, regardless of whether such service is charged (Item
4).
It needs to be noted that the activity of the information
hosting service provider and/or network service provider is
limited with technical process of exploitation and granting
access to the communication network by which information is
transmitted or in which information provided by a third party
is temporarily stored, so that the transmission might be more
efficient.
7. It must be held that the entities-the information
hosting service provider and/or the network service
provider-which are specified in the disputed provisions of the
Procedure cannot be identified with the entities specified in
Paragraph 1 (wording of 29 August 2000) of Article 53 of the
Law on the Provision of Information to the Public, which are
the producer of public information and/or disseminator of
public information.
The disputed provisions of the Procedure regulate
relations of different nature than Paragraph 1 (wording of 29
August 2000) of Article 53 of the Law on the Provision of
Information to the Public.
8. Taking account of the arguments set forth, one is to
conclude that Item 12, the provision "Information hosting
service providers and/or network service providers must disable
access to the information which is in the server computer in
the following cases: <...> 14.2. provided the information
hosting service provider or the network service provider learns
about the information not to be divulged to the public which is
in the server computer and when it is technically possible to
disable such access" of Item 14, and the provision "The Police
Department under the Ministry of the Interior must: <...> 16.3.
inform the information hosting service provider or the network
service provider about the established violation" of Item 16 of
the Procedure for Control of Information Not to Be Divulged to
the Public and Dissemination of Limited Public Information
Stored in Public Use Computer Networks as confirmed by
Government Resolution No. 290 "On the Confirmation of the
Procedure for Control of Information Not to Be Divulged to the
Public and Dissemination of Limited Public Information Stored
in Public Use Computer Networks" of 5 March 2003 were not in
conflict with Paragraph 1 (wording of 29 August 2000) of
Article 53 of the Law on the Provision of Information to the
Public.
VI
On the compliance of Item 12, the provision "Information
hosting service providers and/or network service providers must
disable access to the information which is in the server
computer in the following cases: <...> 14.2. provided the
information hosting service provider or the network service
provider learns about the information not to be divulged to the
public which is in the server computer and when it is
technically possible to disable such access" of Item 14, and
the provision "The Police Department under the Ministry of the
Interior must: <...> 16.3. inform the information hosting
service provider or the network service provider about the
established violation" of Item 16 of the Procedure for Control
of Information Not to Be Divulged to the Public and
Dissemination of Limited Public Information Stored in Public
Use Computer Networks as confirmed by Government Resolution No.
290 "On the Confirmation of the Procedure for Control of
Information Not to Be Divulged to the Public and Dissemination
of Limited Public Information Stored in Public Use Computer
Networks" of 5 March 2003 with Paragraph 3 of Article 25 of the
Constitution.
1. As mentioned, under Paragraph 3 of Article 25 of the
Constitution, freedom to express convictions, as well as to
obtain and impart information, may not be restricted other than
by law, if it is necessary to protect the constitutional values
specified in this paragraph, i.e. the health, honour and
dignity, private life, and morals of a human being, and
constitutional order. It was also mentioned that the
constitutional concept of freedom of information does not
encompass the alleged freedom, which denies the constitutional
values in essence, to perpetrate the criminal actions specified
in Paragraph 4 of Article 25 of the Constitution, i.e. to
disseminate such thoughts, convictions, etc. by which one
instigates national, racial, religious, or social hatred,
violence and discrimination, persons are slandered or where
society or its individual members are disinformed otherwise.
The concept of constitutional freedom of information does not
encompass war propaganda, either, which is prohibited by
Paragraph 2 of Article 135 of the Constitution.
It has been held in this Ruling of the Constitutional
Court that, under Paragraph 3 of Article 25 of the
Constitution, the legislator must, by means of a law, define
the content of the information the dissemination of which is
either prohibited or limited, as well as the ways by means of
which dissemination of certain information is prohibited, as
well as other conditions of dissemination of corresponding
information if this in any manner limits freedom of
information. The legislator also must, by means of a law,
establish: liability for disregard of the said prohibitions and
limitations, including that for dissemination of information
the dissemination of which is prohibited; entities which enjoy
powers to supervise the observance of the prohibitions and/or
limitations, which are established by laws, to disseminate
certain information; entities which apply liability for
disregard of the prohibitions and/or limitations, which are
established by laws, to disseminate certain information;
efficient measures of judicial protection of freedom of
information.
It was also held that the Constitution does not prevent
regulation of certain relations linked with obtaining and
dissemination of information, including the relations linked
with supervision and control of the prohibitions, established
by means of laws, to disseminate information and/or limitations
on dissemination of information, also by substatutory legal
acts, inter alia Government resolutions; that the Government,
while regulating the aforesaid relations by means of its
resolutions, cannot establish any such legal regulation which
is not based on the Constitution and laws, nor any such legal
regulation which competes with that established by laws.
2. While deciding whether the disputed provisions of the
Procedure are not in conflict with the Constitution, one must
elucidate whether the legal regulation established in these
provisions is grounded on laws, and whether it does not compete
with legal regulation established in laws.
3. The disputed provision "The Police Department under the
Ministry of the Interior must: <...> 16.3. inform the
information hosting service provider or the network service
provider about the established violation" of Item 16 of the
Procedure is to be construed in the context of the legal
regulation established in the Law on Police Activities.
Under Article 5 of the Law on Police Activities, some of
the main tasks of the police are protection of human rights and
freedoms, prevention of criminal deeds and other violations of
law, detection and investigation of criminal deeds and other
violations of law. Article 16 of the said law inter alia
establishes that police officers, when carrying out police
tasks, have the right to demand that persons who are not
directly subordinate to them, carry out their lawful
instructions, that law-based requests of police officers shall
be obligatory to all natural and legal persons, and that
persons shall be held liable for non-compliance with such
requests in the manner prescribed by the law. It is established
in Article 19 of the Law on Police Activities that while
preventing criminal deeds and other law violations, the police
officer shall have the right inter alia to officially caution
other persons for their inadmissible behaviour which is
contrary to public interests.
4. In the context of the constitutional justice case at
issue, it needs to be noted that a police officer, while
carrying out the rights and duties established to him in the
Law on Police Activities and while executing prevention of
criminal deeds and other violations of law, must, alongside,
take care that no violations of law be committed, thus also
that no one disseminate information whose dissemination is
prohibited by laws, also that no one violate the procedure for
dissemination of limited information.
Thus, the provision "The Police Department under the
Ministry of the Interior must: <...> 16.3. inform the
information hosting service provider or the network service
provider about the established violation" of Item 16 of the
Procedure is grounded on the Law on Police Activities.
It also must be noted that the disputed provision of Item
16 of the Procedure does not establish any limitations on
dissemination of information.
5. Taking account of the arguments set forth, one is to
draw a conclusion that the provision "The Police Department
under the Ministry of the Interior must: <...> 16.3. inform the
information hosting service provider or the network service
provider about the established violation" of Item 16 of the
Procedure is not in conflict with Paragraph 3 of Article 25 of
the Constitution.
6. The provision "Information hosting service providers
and/or network service providers must disable access to the
information which is in the server computer in the following
cases: <...> 14.2. provided the information hosting service
provider or the network service provider learns about the
information not to be divulged to the public which is in the
server computer and when it is technically possible to disable
such access" of Item 14 of the Procedure is to be construed
while taking account of the fact that, as it was held in this
Ruling, all persons have a duty not to disseminate any such
information whose dissemination is prohibited by laws, as well
as a duty not to violate the procedure for dissemination of
information subject to limitation; that persons who become
aware of the fact that they in any manner participate in
disseminating information whose dissemination is prohibited by
laws or that they contribute to dissemination of such
information otherwise, or that they in any way violate the
procedure for dissemination of information whose dissemination
is limited by the law, must immediately discontinue such
activity.
Thus dissemination of information not to be divulged to
the public and violation of the procedure for limitation on
dissemination of information not to be divulged to the public
are violations of law not tolerated by the Constitution.
Disabling of access to the information which is in the
server computer is one of the ways to prevent publishing of
information which is not to be divulged to the public.
Thus, the disputed provision of Item 14 of the Procedure
establishes such a duty of information hosting service
providers and/or network service providers which stems directly
from the Constitution, inter alia from Paragraphs 3 and 4 of
Article 25 thereof.
7. Taking account of the arguments set forth, one is to
draw a conclusion that the provision "Information hosting
service providers and/or network service providers must disable
access to the information which is in the server computer in
the following cases: <...> 14.2. provided the information
hosting service provider or the network service provider learns
about the information not to be divulged to the public which is
in the server computer and when it is technically possible to
disable such access" of Item 14 of the Procedure is not in
conflict with Paragraph 3 of Article 25 of the Constitution.
8. It has been mentioned that the legal regulation
established in Item 12 of the Procedure does not mean that the
information hosting service provider and/or network service
provider can be held liable solely on the grounds of Item 12 of
the Procedure: for storing the information indicated in the
said item the provider of information hosting services is
liable only according to the laws establishing liability for
storing, dissemination etc. of information which, according to
laws, is not to be divulged to the public.
It was also mentioned that disabling of access to the
information which is in the server computer is one of the ways
to prevent publishing of information which is not to be
divulged to the public, also that such a duty of the
information hosting service providers stems directly from the
Constitution, inter alia from Paragraphs 3 and 4 of Article 25
thereof.
Having held this, one is also to hold that the legal
regulation established in Item 12 of the Procedure does not
limit the constitutional right of persons to disseminate
information.
9. Taking account of the arguments set forth, one is to
draw a conclusion that Item 12 of the Procedure is not in
conflict with Paragraph 3 of Article 25 of the Constitution.
VII
1. Under the Constitution, the legislator has a duty to
legislatively regulate the relations linked with seeking,
obtaining and dissemination of information so that, on the one
hand, one of innate human rights, freedom of information
(implying inter alia freedom of electronic media) would be
ensured and that, on the other hand, in the course of
implementation of freedom of information one would not violate
constitutional values, that they would be protected and
defended.
2. Electronic communications and telecommunications are
undergoing fast development. The opportunities to seek, obtain
and disseminate information by making use of electronic
information technologies, inter alia the internet, are
constantly expanding. It needs to be noted that, alongside, the
social relations linked with dissemination of information on
the internet are becoming more complex. Therefore, it is
necessary that legislation not get behind with the progress of
information technologies and with changes in respective social
relations which are determined by such progress, inter alia
that legislation reflect peculiarities of the entities of the
said relations which objectively determine the necessity to
differentiate their legal status.
3. In the context of the constitutional justice case at
issue, it needs to be noted that the legal regulation
established in laws at present is, to a high degree, of general
character, it does not sufficiently take account of the
specificity of the internet as a media for spreading of
information.
This can create preconditions for appearance of such legal
situations in the future, where due to insufficient legislative
legal regulation freedom of information will not be ensured on
the one hand, and, on the other hand, society and/or its
individual members will not be protected from influence of the
information whose dissemination or whose dissemination
limitations are provided for by the Constitution, and due to
uncontrolled (not disabled immediately) dissemination of such
information various values entrenched in the Constitution,
inter alia human rights and freedoms, will not be protected and
defended.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55, and 56 of
the Law on the Constitutional Court of the Republic of
Lithuania, the Constitutional Court of the Republic of
Lithuania has passed the following
ruling:
1. To recognise that Item 12, the provision "Information
hosting service providers and/or network service providers must
disable access to the information which is in the server
computer in the following cases: <...> 14.2. provided the
information hosting service provider or the network service
provider learns about the information not to be divulged to the
public which is in the server computer and when it is
technically possible to disable such access" of Item 14, and
the provision "The Police Department under the Ministry of the
Interior must: <...> 16.3. inform the information hosting
service provider or the network service provider about the
established violation" of Item 16 of the Procedure for Control
of Information Not to Be Divulged to the Public and
Dissemination of Limited Public Information Stored in Public
Use Computer Networks as confirmed by Resolution of the
Government of Republic of Lithuania No. 290 "On the
Confirmation of the Procedure for Control of Information Not to
Be Divulged to the Public and Dissemination of Limited Public
Information Stored in Public Use Computer Networks" of 5 March
2003 are not in conflict with the Constitution of the Republic
of Lithuania.
2. To recognise that Item 12, the provision "Information
hosting service providers and/or network service providers must
disable access to the information which is in the server
computer in the following cases: <...> 14.2. provided the
information hosting service provider or the network service
provider learns about the information not to be divulged to the
public which is in the server computer and when it is
technically possible to disable such access" of Item 14, and
the provision "The Police Department under the Ministry of the
Interior must: <...> 16.3. inform the information hosting
service provider or the network service provider about the
established violation" of Item 16 of the Procedure for Control
of Information Not to Be Divulged to the Public and
Dissemination of Limited Public Information Stored in Public
Use Computer Networks as confirmed by Resolution of the
Government of Republic of Lithuania No. 290 "On the
Confirmation of the Procedure for Control of Information Not to
Be Divulged to the Public and Dissemination of Limited Public
Information Stored in Public Use Computer Networks" of 5 March
2003 were not in conflict with Paragraph 1 (wording of 29
August 2000) of Article 53 of the Republic of Lithuania Law on
the Provision of Information to the Public.
This ruling of the Constitutional Court of the Republic of
Lithuania is final and not subject to appeal.
The ruling is promulgated in the name of the Republic of
Lithuania.
Justices of the Constitutional Court: Armanas Abramavičius
Toma Birmontienė
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Vytautas Sinkevičius
Stasys Stačiokas
Romualdas Kęstutis Urbaitis