“Yandex” beat off a penalty // The court supported the search engine in a dispute with TeleSport

Yandex won an appeal against the TeleSport Group agency in a violation of rights case. TeleSport accused the search engine of allegedly illegal indexing of video cuts of Italian football matches in the Yandex.Video section. At the same time, the copyright holder TeleSport himself openly posted these highlights on social networks. According to the court, Yandex did not independently place or store the highlights, but only indexed them from the public domain, so it cannot be held liable to the plaintiff. TeleSport intends to challenge this decision.

On June 2, the first court of appeal overturned the February decision of the Moscow City Court, which admitted Yandex’s guilt in a dispute with Telesport Group JSC, found Kommersant in the court’s database. In August 2020, TeleSport accused the search engine of violating its exclusive rights in Russia to highlights (highlights) of football matches of the Italian championship of the 2018/19, 2019/20 and 2020/21 seasons. Yandex indexed these highlights posted in the official TeleSport groups on VKontakte and Odnoklassniki, and they could be viewed in Yandex.Video.

As a result, TeleSport filed three claims against the search engine: for 3.4 million rubles, on which the appellate court ruled, for 2.95 billion rubles. (a month ago, the plaintiff reduced the claims to 186 million rubles, consideration on it was scheduled for June 16) and by 529 million rubles. (consideration is scheduled for June 17). The lawsuits differ in the number of controversial content links.

The first instance supported the copyright holder, pointing out that Yandex provides not only a list of sites where you can watch the matches from TeleSport, but also gives you access to content without having to go to another site. The lawsuit said that in 2019 TeleSport even discussed with Yandex the sale of rights to these highlights and allowed them to be used temporarily, but the license agreement was not concluded, and Yandex.Video continued to index the content for free.

The Court of Appeal overturned the decision of the first instance, because, in its opinion, Yandex did not independently post and store the highlights, they were actually viewed on the Odnoklassniki website, but ended up in search results using the indexing technology (iframe). The court separately noted that when posting content in the public domain, TeleSport did not use the option to close it from indexing on other sites, thereby making it publicly available.

TeleSport will challenge the court’s decision, the company told Kommersant: “We respect it, but we cannot agree with it and will file a cassation appeal. If it is contested, we intend to go to the Supreme Court. ” Yandex did not specify whether the controversial links would be returned to Yandex.Video.

In further disputes between TeleSport and Yandex, the courts will be guided by this case from the principle of uniformity in the application of judicial practice, says Kirill Nikitin, head of the Vegas Lex practice, “so the likelihood of satisfying the rest of the agency’s claims is minimal.” Case, in his opinion, “can be called precedent”: until now, the courts have not thoroughly studied either the role of an information intermediary in the distribution of content, or the iframe technology. “Previously, there was legal uncertainty in this matter, now the technology can be used without any risk of bringing the search engine to justice,” he believes.

Until now, there was no practice of considering such disputes in Russian courts, confirms partner of the Pen & Paper Bar Association Sergei Uchitel. “Of course, the verdict of the appeal will affect the consideration of other similar cases related to the way links are placed and the storage of content,” he agrees.

Earlier, TeleSport had a lawsuit with Rambler over the highlights of Italian football posted on its Chempionat.com website. In July 2019, TeleSport demanded 234 million rubles from Rambler. for 47 violations, in October the court upheld the claims for 1.4 million rubles. Then both the appeal and the cassation left the decision of the Moscow City Court unchanged. But in this case, Rambler did not index the videos, but posted them on its own, explains Kirill Nikitin.

Anna Afanasyeva