Google LLC & another -v- Nao Tsargrad Media & others [2025] EWHC 94 (Comm)
This case involved three Russian media companies (Tsargrad, NFPT and TV-Novosti) that had their Google accounts and YouTube channels suspended on grounds of international sanctions. They obtained Russian Arbitrazh Court judgments against Google and Google subsidiaries which imposed progressive astreinte penalties of “unprecedented magnitude” for non-compliance with the Court’s orders to reinstate the Russian companies’ access to Google and YouTube.
On application by the Google entities, who relied on London arbitration and/or exclusive English jurisdiction provisions in the relevant contracts, the English Court granted anti-enforcement injunctive relief in respect of the Russian judgments, as well as ancillary anti-anti-suit injunctions.
The contractual background
The creation and use of a Google account and YouTube channel are subject to, respectively, the Google Terms of Service, as amended, and the YouTube Terms of Service, as amended. Google is entitled, under the YouTube Terms of Service, to suspend or terminate a Google account (and related services) in the event that Google was required to do so to comply with law or a court order.
Two of the Russian media companies, Tsargrad and TV-Novosti, entered into separate agreements with Google Ireland for monetisation services namely:
- an Order Form, incorporating the Platform Terms, which covered revenue sharing from advertising on Tsargrad’s YouTube channel; and
- a Content Agreement setting out the terms by which Google Ireland would store, index and host content and make such content or portions of it available to end users of the relevant services provided to TV-Novosti.
The YouTube Terms of Service incorporated an exclusive jurisdiction clause (ECJ) that provided for English law and English court jurisdiction but also stated:
Slide 1 of 1
- If, under any mandatory law of your country, the dispute cannot be resolved in a court in England or Wales and in accordance with the norms of English law, the case may be referred for consideration to a local court and the issue may be resolved as guided by local legislation.”
The ECJ in the Platform Terms provided for English law and exclusive English court jurisdiction, save that either party could apply to any court for an injunction or any other relief to protect its intellectual property rights.
The Content Agreement incorporated an English law and LCIA arbitration provision, with the seat of any arbitration to be in London, England and without prejudice to the right of either party to apply to any competent court for emergency, interim or injunctive relief.
The third Russian media company, NFPT, also subscribed to Google and YouTube on the basis of their respective Terms of Service.
The Russian proceedings
Tsargrad
In August 2014, Tsargrad created a Google account and YouTube channel. Tsargrad is indirectly owned by a Russian oligarch, Mr Konstantin Malofeyev, who has, since July 2014, been subject to EU and US sanctions.
In July 2020, Google stopped providing services to Tsargrad and terminated its Google accounts and YouTube channel, maintaining that it did so in order to comply with US sanctions. Google Ireland likewise stopped providing advertising services to Tsargrad.
In August 2020, Tsargrad commenced proceedings in the Arbitrazh Court in Moscow against Google, Google Ireland and Google Russia, alleging that Google had acted unlawfully and seeking an order for restoration of access and a progressive substantial astreinte penalty absent compliance with the Court’s order.
By a decision dated 18 December 2020, the Arbitrazh Court found that it had exclusive jurisdiction over the dispute pursuant to Article 248.1 of the Arbitrazh Procedural Code (APC), holding that Tsargrad faced obstacles to justice in foreign courts such as England, where restrictive measures have been adopted.
In December 2020, Mr Malofeyev became subject to UK sanctions and an asset freeze under the Russia (Sanctions) (EU Exit) Regulations 2019.
The claimants failed in their attempt to appeal the Russian jurisdiction decision. In the substantive judgment in April 2021, the Arbitrazh Court ordered reinstatement of the Google account and access to the YouTube channel, as well as imposing an astreinte penalty of 100,000 roubles (approximately £880) a day for non-compliance. The judgment was upheld on appeal, save that the appeal court imposed a limit of one billion roubles (about £6.4 million) on the astreinte penalty for the first nine months, after which it would accrue without limitation. Expert evidence on Russian law indicated that no Russian court had previously imposed an astreinte penalty anywhere close to this amount.
Further appeals by the claimants failed. In September 2023, pursuant to EU sanctions regulations which prohibited Google from broadcasting Tsargrad’s content, and to ensure compliance with internal policies and applicable laws, Google terminated the YouTube channel, having temporarily reinstated the Google account and permitted access to the YouTube channel within Russia.
TV-Novosti
In December 2021, Google terminated one of TV-Novosti’s YouTube channels for violations of the then-prevailing version of the YouTube Terms of Service. In March 2022, following the second invasion of Ukraine, Google blocked access by third parties to TV-Novosti’s other channels. TV-Novosti is subject to UK and EU sanctions due to its role as a major state-funded Russia media organisation and for allegedly spreading propaganda and misinformation.
In May 2022, TV-Novosti commenced proceedings in the Arbitrazh Court against Google, Google Ireland and Google Russia, requiring reinstatement of its channels and imposition of a penalty similar to that obtained by Tsargrad. In October 2022, the Arbitrazh Court dismissed the claimants’ jurisdictional challenge and ordered restoration of access to Google and reinstatement of the YouTube channel, as well as ordering an astreinte penalty similar to that ordered by the Arbitrazh Court in the Tsargrad proceedings. The claimants’ appeals also failed.
NFPT
Following the invasion of Ukraine, in March 2022 Google blocked access to users of NFPT’s YouTube channel to address the dissemination of harmful content.
NFPT applied to the Arbitrazh Court for relief and was granted an order that access be reinstated, as well as an astreinte penalty imposed similar to those imposed by the Arbitrazh Court in relation to TV-Novosti and Tsargrad. The claimants’ appeals again failed.
Enforcement actions
The Russian judgments were said to have resulted in the seizure of assets in Russia worth more than £50 million belonging to Google Russia and Google Russia becoming insolvent. Furthermore, the defendants commenced enforcement proceedings in a number of other jurisdictions outside of Russia.
The claimants applied to the English Court for an anti-enforcement injunction and supporting anti-anti-suit injunctive relief in order to prevent the recognition and enforcement of the Russian judgments anywhere outside of Russia. The claimants contended that the Russian proceedings had been commenced and pursued in breach of a London arbitration agreement and/or exclusive English jurisdiction agreements.
The Commercial Court decision
As highlighted by the Court, the liquidator of Google Russia stated in May 2024 that the value of some of the astreinte penalties (not including Tsargrad) amounted to the pounds sterling equivalent of around £1.85 octillion, i.e. £1,850,000,000,000,000,000,000,000,000 (which is about 20 trillion times greater than the estimated GDP of all the economies in the world of about US$110 trillion). A more recent estimate put the figure at the equivalent of £102 nonillion (a nonillion being a 1 followed by 30 zeros).
The English Court had jurisdiction over the claims on the basis that the contracts provided for English law and that they incorporated either a London arbitration or English EJC. There was some discussion about whether the YouTube jurisdiction clause was exclusive or non-exclusive, The Court concluded that in the context of these disputes, it was exclusive. The Russian proceedings were brought in breach of the defendants’ contractual obligations to honour the jurisdictional provisions.
Furthermore, an attempt to enforce a judgment obtained in such a way could in principle be restrained by an injunction. Nonetheless, anti-enforcement injunctions are rarely granted because of comity considerations; an anti-enforcement injunction has the effect of indirectly interfering in the process of a foreign court. Very clear justification is, therefore, required.
However, the fact that the foreign proceedings were brought in breach of the respondents’ obligations under an arbitration or exclusive jurisdiction clause is capable of amounting to such justification.
The Court further highlighted that an anti-enforcement injunction is less likely to be granted where a foreign court had already proceeded to judgment. However, where the injunction is sought at a time where the foreign enforcement proceedings are still at an early stage, then concerns about waste of time and resources are minimised. Delay in seeking the injunction is also an important factor.
In this case:
- The claimants had given a reasonable explanation for any perceived delay in seeking the injunctions.
- The anti-enforcement injunction would not indirectly interfere with enforcement action in Russia. Over £50 million in assets had already been seized.
- In other jurisdictions, enforcement proceedings were still at an early stage.
- The judgments that the defendants sought to enforce abroad were for extravagant, indeed other-worldly sums of money of a penal nature and bearing no relation to any measure of compensatory damages. The attempt to enforce them was exorbitant.
- While comity considerations were important, the claimants had a contractual entitlement not to be vexed with multifarious attempts to enforce judgments obtained in clear breach of exclusive jurisdiction clauses or arbitration agreements.
The Court concluded it was appropriate to grant final anti-enforcement injunctions in this case. It was also appropriate to grant anti-anti-suit injunctive relief in view of the risk that the Russian Arbitrazh Court might grant anti-suit injunctions pursuant to Article 248.1 of the Arbitrazh Procedural Code.
Comment
The case usefully illustrates the principles that the Court will apply when deciding whether it is just and convenient to grant an anti-enforcement injunction.
It also highlights the way in which Russian entities are increasingly relying on the Russian Arbitrazh Courts in the face of international sanctions that may impact their commercial interests and potentially put them at what they perceive to be a disadvantage in foreign courts. It would, however, appear that, in this case, the “extravagant, indeed other-worldly, sums of money of a penal nature” awarded by the Russian Arbitrazh Court could prejudice enforcement efforts outside Russia, especially where such proceedings may have been brought in breach of exclusive jurisdiction clauses.
For further information, please contact:
Iain Sharp, Partner, Hill Dickinson
iain.sharp@hilldickinson.com
