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On the procedure for the dissemination of information not to be divulged to the public

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 THE 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’S 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

The court reporter—Daiva Pitrėnaitė

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, acting as the representatives of the Government of the Republic of Lithuania, the party concerned

The Constitutional Court 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 considered case No. 19/04 subsequent to the petition of the Second Vilnius City Local Court, the petitioner, requesting an investigation into 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 the 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’s Law on the Provision of Information to the Public.

The Constitutional Court

has established:

I

The Second Vilnius City Local Court, the petitioner, considered an administrative case. By its ruling, the said court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into 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 the 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 petition 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 of expressing convictions, as well as of obtaining and imparting information may not be restricted other than by law.

III

1. In the course of the preparation of the case for the Constitutional Court’s 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 impugned 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 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 of expressing 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 of seeking, obtaining and imparting 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 on disseminating information which must not 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 on disseminating 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 law 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 freedom of expression of one’s convictions, and of obtaining and imparting 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 on publishing certain information or on disseminating it publicly. 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 should 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’s 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’s hearing, written explanations were received from A. Kunčinas, Chairperson 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 Department 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’s 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 an investigation into 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 the 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 the 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 subjects 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 a 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 law.

18. Other subjects 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 must not 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 the Resolution (No. 750) “On Amending the 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 the impugned Chapters VI, VII and VIII were not amended and/or supplemented.

5. Although the petitioner requests an investigation into 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 the 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 before, the petitioner requests an investigation into whether the impugned 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 the 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 its 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 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 the 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 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 (the Constitutional Court’s 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. Freedom of seeking, obtaining and imparting information is not an absolute one (the Constitutional Court’s 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 the prohibition on disseminating 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 (the Constitutional Court’s 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 legislature must legislatively establish the legal regulation that the instigation of national, racial, religious, or social hatred, violence and discrimination, slander and disinformation, if by means of which 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 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 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 legislature, under the Constitution, has a duty to establish such legal regulation which would ensure that public power (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 power (its institution or official) in court, which, in his opinion, limits his right to seek, obtain or disseminate information. Under the Constitution, the legislature 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 on freedom of information established in the legal acts applicable in a corresponding case.

5. As mentioned before, 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 legislature 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 legislature 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; the subjects that enjoy the powers to supervise the observance of the prohibitions and/or limitations, which are established by law, to disseminate certain information; the subjects that apply liability for disregard of the prohibitions and/or limitations, which are established by law, 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 act, inter alia, by government resolution. 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, or any such legal regulation which competes with that established by law.

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 the 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 subjects of law of the Republic of Lithuania, as well as subjects 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’s Law on the Provision of Information to the Public, the Republic of Lithuania’s Law on the Protection of Minors against Detrimental Effect of Public Information, the Republic of Lithuania’s 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 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 prescribes 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. The prohibitions on publishing information of certain content, as well as limitations on publication of certain information are also established by means of 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’s Law on Legal Protection of Personal Data, the Republic of Lithuania’s Law on the Health System, etc.

Laws also establish liability for disregard of the prohibitions on publishing 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 law, about a natural or legal person (Article 198) etc.; the Code of Administrative Violations of Law establishes prohibitions on keeping, distributing or publicly demonstrating information production propagating national, racial or religious hatred (Article 21412), on violating the procedure of distribution of printed matter of erotic and violent nature (Article 214), on disseminating 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’s Law on Police Activities and the Republic of Lithuania’s Law on Operational Activities, establish the 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 the subjects that have the powers to supervise how the prohibitions and/or limitations to disseminate certain information that are established in laws are observed as well as the subjects that apply liability for disregard of the prohibitions and/or limitations on disseminating 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 law, 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 law 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 law, must immediately discontinue such activity.

In this context, one should 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 on 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 should 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 should 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 must not 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 should 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, must not 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 the 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 impugned 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 subjects 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 subjects the provisions of the Procedure, should be applied.

3. As mentioned before, 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 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 law.

5. It should be held that at the time of adoption and entry into effect of the 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 impugned 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 subjects—the information hosting service provider and/or the network service provider—which are specified in the impugned provisions of the Procedure cannot be identified with the subjects 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 impugned 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, it should be concluded 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 the 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 the 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 before, 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 legislature 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 legislature 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; the subjects that enjoy the powers to supervise the observance of the prohibitions and/or limitations, which are established by law, to disseminate certain information; the subjects that apply liability for disregard of the prohibitions and/or limitations, which are established by law, 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 act, inter alia, by government resolution; 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, or any such legal regulation which competes with that established by law.

2. While deciding whether the impugned 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 impugned 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 should 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 provides, inter alia, 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 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 law, 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 impugned provision of Item 16 of the Procedure does not establish any limitations on dissemination of information.

5. Taking account of the arguments set forth, the conclusion should be drawn 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 should 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 law, 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 law 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 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 access to the information which is in the server computer is one of the ways to prevent publishing information which must not be divulged to the public.

Thus, the impugned 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, the conclusion should be drawn 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, must not be divulged to the public.

It was also mentioned that disabling access to the information which is in the server computer is one of the ways to prevent publishing information which must not 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, it should also be held 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, the conclusion should be drawn 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 legislature has the duty to legislatively regulate the relations linked with seeking, obtaining and imparting 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 subjects 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 a general character, it does not sufficiently take account of the specificity of the Internet as a media for spreading information.

This can create preconditions for the emergence 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 the 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 gives 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 the 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’s Law on the Provision of Information to the Public.

This ruling of the Constitutional Court is final and not subject to appeal.

The ruling is pronounced 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