Now we can only talk about the weather, cats and pie recipes: New censorship laws in Russia
By Galina Arapova, Head of the Mass Media Defence Centre, Media Lawyer and Member of EHRAC’s International Steering Committee.
Amendments to the Federal Law of 27 July 2006 No. 149-FZ “On information, information technologies and the protection of information”, under which the publication of fake news and information showing “blatant disrespect for the authorities in an indecent form” can be blocked, entered into force at the end of March 2019. Penalties for these infringements in the form of large fines and even administrative detention for up to 15 days were added to the Code of Administrative Offences at the same time. The author of the law, member of parliament Andrei Klishas, believes that “these laws protect human rights”. However, both experts and the public are already saying that these amendments constitute censorship, and rightly so.
What is fake news?
The new provisions outlaw so-called “fake news”, namely the spread of “information of public interest which is known to be unreliable, is disguised as accurate information and poses a risk of harm to the life and/or health of citizens or property, a risk of mass disruption of public order and/or public safety, or a risk of impeding or halting the functioning of critical, transport or social infrastructures, lending institutions, or power generation, industrial or communications facilities”. And in cases where such fake news has not only posed a risk of but also caused all of these negative consequences, or where someone has been imprudent enough to commit a repeat offence, the fines are considerably higher: up to 400,000 roubles (approx. $6000) for individuals, and up to 1.5 million roubles (approx. $23,000) for corporations. These appear to be the biggest fines in the Code of Administrative Offences in relation to the spreading of information. Even in the Criminal Code, the biggest fine is only 40,000 roubles (approx. $600) for insulting a representative of the authorities (Article 319). Larger amounts of compensation are often awarded in civil claims concerning defamation (average sums of $584 for individuals and $3,927 for mass media), but now the price of criticising the authorities has multiplied significantly.
The extent of our MPs’ censorial thinking is even more striking in the second amendment. It outlaws “the spreading of information which shows blatant disrespect for society, the government, official state symbols of the Russian Federation, the Constitution of the Russian Federation or authorities exercising governmental authority in the Russian Federation”. Free thinking and criticism can result in blocking of the resource and fines lower than those for fake news, up to 100,000 roubles (approx. $1500) initially; but particularly zealous members of the public who do not quieten down after the first occasion and go on criticising the authorities can be fined up to 300,000 roubles (approx. $4500) or be placed in administrative detention for up to 15 days.
The ban not only applies to editorial staff of media agencies but also affects any active internet user. It therefore potentially affects not only journalists, but any online member of the public. And now, just over three months after the laws entered into force, we can already see how they have begun to be applied, for example to ordinary internet users who have published posts critical of President Putin on social networks. The first internet purge began with publications about the head of state.
The President of the Russian Federation can be regarded as a “representative of the authorities”, and therefore if he is harshly criticised in an indecent form, a criminal case could already have been brought under Article 319 of the Russian Federal Criminal Code for “insulting a representative of the authorities”, even before the new laws were brought in. But this involves a lengthy process, an investigation and adversarial court proceedings, and results only in a small penalty. A person can defend themselves in court one way or the other, and Putin must be officially recognised as an aggrieved party and questioned. But why bother Putin and take him away from important affairs of state? Now, punishing a critic is much easier and quicker, with no investigation of any kind, and access to his publication on the internet can be restricted within a day by means of extrajudicial blocking (i.e. without a prior court decision).
What was the situation like before?
Some things that have appeared in the new provisions were already protected by other laws: in essence, the new provisions duplicate the old ones, and merely introduce a new penalty – blocking of the resource. For example, “disruption of public order which expresses blatant disrespect for society” is an offence under Article 20.1 of the Russian Federal Code of Administrative Offences concerning “petty hooliganism”, and fines for disrespectful utterances about the authorities have basically been added to it. Article 213 of the Criminal Code also concerns “hooliganism”. Then we have Article 329 concerning “abuse of the state coat of arms of the Russian Federation or the state flag of the Russian Federation”. Here the word “abuse” is used, whereas in the new law, this is called “blatant disrespect”; but in essence, these are very similar things. Clearly, the aim is not to protect these symbols or punish the person, but rather to restrict the spreading of information so that no one can access it.
In order to understand how we should behave online from now on, let’s now try to take a look at the issue of risqué online discussion and writing.
Fact or fake?
Journalistic investigations into corruption and any online discussions (not just on media websites, also simply on social networks) which give accounts of events of public interest that have not yet been confirmed at the time of publication can now fall under the scope of the conditional “fake news laws”. Even publications containing speculation, which by definition cannot be verified, are at risk of being blocked; for example, a publication about the revocation of a particular bank’s licence. In the past, such a publication would cause serious annoyance to the bank, and members of the public would worriedly look out for announcements in the press and on the internet. And that was rather logical, no one wanted to lose their savings. Clearly, any publications containing any speculation about problems in the banking sector can now be regarded as “unreliable information of public interest” which poses a “risk of impeding the functioning of lending institutions”. It is difficult to imagine vaguer wording.
Who will decide whether information poses a risk, and how? Do we have to wait for harm to be caused to the life or health of members of the public or for the functioning of transport infrastructure to be impeded? And how will the causal link between, for example, “fake” news post from a Facebook user about something that causes mass panic and a huge traffic jam on the road be checked? And then there’s the fact that, as we are very well aware, jokes and satire are often taken at their literal face value by the authorities. What should be done with publications such as these? How can the accuracy of artistic fiction or a joke, for example, in a meme be verified?
I fear that these restrictions will also pose a problem for experts from whom the media traditionally obtains comments about various events of public importance, including situations concerning problems in the operation of “transport or social infrastructure, lending institutions, or power generation, industrial or communications facilities”. People believe experts more than they believe ordinary sources of information. Expert assessments and conjecture may very well be regarded as “information of public interest which is known to be unreliable and is disguised as accurate information”. It is not easy to check reliability, especially in a short space of time, but blocking a website on the grounds that it carries fake news which looks like “reliable information” will now be very easy. Furthermore, online media outlets which are officially registered as media outlets will at least be notified before news is blocked, giving them the chance to remove it themselves, whereas similar publications on any other websites will be blocked extra-judicially by order of the Prosecutor-General (i.e. without warning).
“Disrespect for the authorities”
The second set of amendments provided by the Federal Law of 18 March 2019 No. 30-FZ “On Amendments to the Federal Law ‘On Information, Information Technologies and Information Protection’” concerns an even more interesting range of issues and, in essence, restricts people’s constitutional right to express their opinions about the authorities (paragraphs 4 and 5, Article 29 of the Constitution). This is unprecedented. A number of protected entities which were not previously protected by law have appeared in the legislation. For example, there were previously no penalties for criticising the Russian Federal Constitution or authorities exercising governmental power – neither individual officials, nor entire departments. The latter include all federal and regional government agencies, probably their departments, the prosecution service, the courts, and so on. The definition in the new law does not yet extend to local authorities, but it is not impossible that a broad interpretation which will also punish criticism of local authorities will be applied later on.
The scale of what cannot be talked about is staggering. In essence, nothing that relates to the State – not even the Constitution, the coat of arms or the flag – can be criticised. This raises a huge number of questions: for what reason? And we are not talking about criticism of a specific person who might be offended. We are talking about inanimate objects and institutions which, by definition, cannot be offended. It feels as though the government simply does not want people to talk about how the authorities work or how effectively they fulfil their role of maintaining public wellbeing and prosperity: they do not want to hear any criticism. And if public dissatisfaction becomes more intense or people disagree with or even voice objections to government decisions on – for instance, pension reform, the banning of imported foreign medicines or failure to investigate corruption scandals – then it is to be expected that people will start talking about this, and not always in polite terms. I am not a supporter of using unjustifiably insulting language. But choice of words in a discussion is not just a question of good manners and “linguistic competence” (the words that a person is in the habit of using and the words of which they understand the meaning); according to experts, it is also a question of emotion – resentment, pent-up indignation – and the resulting expression in the form of speech and writing, especially if there is provocation. We cannot deprive people of the right to voice criticism of the authorities, gag them and force them to use only expressions that children at secondary schools would use. Democratic societies do not work like that.
The way in which the prohibited information is defined is itself rather unclear, so it is completely impossible to know how the Prosecutor-General who will personally, by law, take decisions on blocking) will decide that an utterance shows blatant disrespect towards, for example, the Constitution. First of all, he is not a linguist who could take decisions on linguistic expressions. Secondly, even in the legal part of this decision, there is not just a loophole, but a gaping hole which allows virtually any criticism to be arbitrarily blocked using excessively vague legal criteria, if they can be categorised as such at all.
How to define decency
What exactly is an “indecent form”? There is no such concept as “indecent form” in legislation. When Article 130 of the Russian Federal Criminal Code concerning “insults” was still in force, the Supreme Court of the Russian Federation explained that “indecent form” essentially meant vulgar language. Linguists put invective, obscene language, i.e. swearing, in this category. The article has since been revoked, and the Supreme Court’s official interpretation disappeared along with it. But Article 297 concerning contempt of court and Article 319 concerning “insulting representatives of the authorities”, both of which make it a criminal offence to insult particular categories of officials, are still in force. The Articles themselves do not state that insults must be expressed in an “indecent form”, but all well-known unofficial interpretations and case law indicate precisely this.
In current legislation, the phrase “indecent form” appears only in Article 5.61 of the Russian Federal Code of Administrative Offences concerning “insults”, but there is no definition of the term. Courts have total discretion to class anything they like as insults, including animal terms or comparisons with odious historical figures, or entirely bookish words such as conman, ass or idiot. When it comes to people who receive special protection because of the significance of their work, such as judges, “insults” can include more literary expressions which cast doubt on the competence of judges or other persons involved in judicial proceedings, including prosecutors. For example, the words “insane” and “slow-witted pedal horse” uttered in relation to a judge have resulted in prosecutions under Article 297 of the Russian Federation Criminal Code for contempt of court. It goes without saying that this is not swearing, so the scope of “indecent form” has widened considerably and its boundaries are unclear.
Expert linguistic assessments are always used in criminal cases concerning insults, and analysis of them shows that even linguists have now begun to interpret the concept of “indecent form” quite broadly (see, for example, here and here). Although only swearing was placed in this category in the past, it now also includes informal and vulgar vocabulary, slang and even entirely ordinary and literary vocabulary. Such practice gives rise to a danger that any critical utterance can result in prosecution, and now a website can be blocked and a hefty fine can be imposed if such an utterance of an “indecent” form is targeted at authorities, symbols of the state or the state.
Of course, in situations concerning a targeted and unjustified attack on a specific person where there are grounds to view this as a personal insult, it is necessary to protect their good name and assert personal non-pecuniary rights. And there is already a mechanism for this, and a fairly moderate one – a small fine under the Code of Administrative Offences (Article 5.61). But why is it necessary to forbid people to give voice to their dissatisfaction in an expressive manner with regard to, for example, controversial initiatives put forward by members of parliament or the authorities? In essence, the proposed mechanism – blocking – means that such discussion will be banned. In effect, public discussion of these topics involving expressive or simply colloquial expressions is unacceptable. This ban will greatly restrict people’s ability to express criticism, because it is criticism that is most often conveyed in expressive utterances. Such expressions are rarely used to give praise.
This law will be a very powerful tool for the state authorities, which will be able to stop the spread of information and public discussion about matters of public importance. It will also be a major factor encouraging self-censorship – people will be scared to speak out, because although it is stipulated that unblocking will be possible, we know in practice that getting anything unblocked is difficult. As a result, it will be easier for people to say nothing than to engage in litigation with the Government later on, especially since it would be the Prosecutor-General’s Office that they would be facing in court.
The new laws are clearly intended to achieve precisely this – to reduce the intensity of criticism and shut down public discussion of issues that worry people. The Government is clearly afraid of online outpourings of criticism, and is trying to suppress it by this rather ham-fisted method. But I fear that this could cause even greater dissatisfaction in general, even if some critics of the authorities will dive for cover, afraid of speaking out openly on social networks and other online forums. In addition, this tool could be used maliciously in the future by agents provocateurs who will post comments “showing blatant disrespect for the authorities” on a media website or online resource which is disliked by the authorities and hasten to report it to the Prosecutor-General.
 Part 9, Article 13.15 of the Code of Administrative Offences of the Russian Federation amended by the Federal Law of 18 March 2019 No. 31-FZ “On Amendments to Article 15.3 of the Federal Law ’On Information, Information Technologies and on Protection of Information’”.
 Parts 10 and 11, Article 13.15 of the Code of Administrative Offences.
 Part 1, Article 15.1-1 of the Code of Administrative Offences of the Russian Federation amended by the Federal law of 18 March 2019 No. 30-FZ “On Amendments to the Federal Law ’On Information, Information Technologies and Information Protection’”.
 Parts 3, 4, 5, Article 20.1 of the Code of Administrative Offences.