In a special interview for Legal Dialogue, journalist Vladimir Shvedov asks lawyer and head of the Mass Media Defence Centre (Voronezh) Galina Arapova about her vision of the present and future of Russian journalism, IT giants’ policies concerning freedom of speech, and whether the “foreign agents” law can be improved.
Many people see you as a symbol of opposition to repressive legislation, especially after you were declared “individual – foreign agent.” But you are a lawyer by training and your profession does not readily fit this image. How do you feel about it?
I am not a revolutionary fighting against the regime – I have never wanted to be one, and do not think I am one. As a lawyer, I am doing what anyone should be doing in my position. The law on “foreign agents” originally designed for NGOs in 2012, has since expanded to include journalists. I am not an expert in the NGO law, but I have practiced media law for 25 years, and I am a co-author of the expert commentary to the Russian Law on Mass Media. The issue of “foreign agents” has become central to my practice since the legislation was amended to include the mass media.
Today, as we are bombarded virtually every week by new decisions declaring journalists and media outlets “foreign agents,” I simply cannot avoid getting involved as an expert in media law. Labelling media organisations and workers “foreign agents” is discriminatory from all perspectives, traumatic for individuals and harmful for the profession. I speak openly about it, and people ask me for advice on the matter. Indeed, who is in a better position to answer questions about violations of media rights than a media lawyer whose job is to defend these rights?
While I may not be fighting on the barricades, I will continue, as an expert in my field, to comment on both the law and judicial practice. This is part of a lawyer’s duty.
The image arising in my mind is that of a natural cataclysm. Once I saw a film about scientists who observed tornadoes in America. A tornado is like a huge funnel spinning at a frantic speed, sweeping entire buildings in its path. You may be curious of what is inside this funnel, but you risk total destruction by coming near it.
So I found myself drawn into this huge funnel. I can no longer stay at a safe distance and observe the tornado destroying everything in its path. First I studied it as an expert, then I commented on it, and now I carry the “media – foreign agent” label, with the tornado swirling all around me.
This experience is difficult and destructive but also useful, as it helps one get first-hand understanding of what is really going on. Earlier, my grasp of the situation was good enough to be able to explain things to others, to help journalists and to engage in discussion with colleagues. But now I am going through it personally and try to think of this as a scientific experiment. The idea is to keep yourself from destruction so that later you may help others facing this tornado.
A while ago, when you started offering legal support to media outlets and journalists, perhaps you could not have imagined how things would turn out.
Indeed, when I started out practicing media law in 1995, things were totally different. The new law on mass media had just been adopted, and the media industry was on the rise, incredibly progressive and fast-growing, intellectually driven and relatively peaceful.
While the hostilities in Chechnya continued, with reporters getting killed in the warzone, there was no crackdown on the entire profession such as today. We certainly witnessed high levels of violence against journalists, but it was targeted at those who covered certain sensitive topics such as criminal business, corruption, and the North Caucasus. Reporting on such topics could make journalists vulnerable to retaliation, but the overall profession was still very much alive with good prospects of even more freedom. In fact, many people in the provinces ignored the potential dangers involved in being a reporter but had the drive and desire to create something new.
The name of the government authority in charge of mass media regulation in the early 1990s is revealing: it used to be the State Inspectorate for Protecting Freedom of the Press and Mass Media. What is the name now? Even teenagers at school know the name of Roskomnadzor (Federal Service for Supervision of Communications, IT and Mass Media, RKN) – and they also know it to be the censorship agency.
According to some journalists who worked during Soviet times, things were even worse then: one could get fired for saying or doing something wrong and all publications were subject to censorship. But today, losing one’s job is no longer the worst outcome for a journalist in Russia, although it continues to be one of the main risks for media workers, especially those declared “foreign agents.” But in addition to losing their jobs, journalists may be forced to leave the country or to report the details of their personal income and expenses to government under threat of criminal prosecution and to label all of their texts with a humiliating disclaimer.
In fact, I believe that the way it is perceived by many people, the situation with the freedom of expression may be even worse today than in Soviet times, mainly because of the drastic contrast with the relatively recent period of publicity and freedom of speech. The backslide into censorship of the media, coupled with government propaganda and persecution of individual journalists, is seen by many as extremely painful and unfair.
The current generation of journalists has not lived in the Soviet Union for the last 30 years and came into this profession being confident that freedom of expression, availability of the internet and real-time information sharing worldwide are the norm. How could it be otherwise in today’s world?
Thirty years is a long time. Someone in their fifties who started out as a journalist during the early perestroika has since then experienced a hellish rollback from a free media market, freedom of speech and respect for journalists to archaic repressive policies.
This, in my opinion, makes us feel even worse today compared to the Soviet times when all mass media were state-owned and there was no internet. Having experienced freedom of speech and seen how things should be done and then facing even worse oppression than before, while the entire world continues to move forward, is much harder. After all, the internet is here to stay even if we end up confined within the boundaries of the “Runet.” People are already used to a different way of life and will experience restrictions as even more painful. We cannot apply Soviet standards to the modern world.
Speaking specifically about pressure on the media rather than broader restriction of the internet, do you think the uninvolved public is aware of the pressure and rapid changes in the environment?
I do not think that most members of the general public are aware of the changes. An information bubble has formed over the past decade around the state-controlled media and their audience. People consuming information from these sources seem to live in their own, separate reality and to see things in a particular way. While they are aware of the problems with food prices and higher retirement age, they usually ignore things such as pressure on independent media, obvious to people receiving information from independent sources.
The broader public may start to realise that something is wrong with the internet and mass media only when it affects their everyday lives and digital habits, e.g. when they can no longer share funny messages and memes on WhatsApp, exchange tips and recipes in parents’ chats or show cartoons to their children on YouTube – but this is exactly what will happen should a “sovereign Internet” become reality. When you cannot make a phone call because all mobile networks in the city centre have been cut off, when you cannot google a recipe for a cheesecake or tom yam soup but have to use the old-fashioned paper-based search, then you will begin to understand that something has definitely gone wrong.
But so far, global tech companies tend to comply rather than resist, because they want to keep their business. Should this continue, the majority of people may not even notice anything.
Indeed, companies comply with government requirements – nothing personal, just business. A company could face a fine of up to 10% of its annual turnover for failure to remove certain content upon Roskomnadzor’s order. Sanctions for non-compliance are very tough!
As an expert who has studied relevant policies worldwide, I must admit that Russia is not the first country to try to regulate the internet and to force IT giants into compliance. Both Germany and France have made such attempts, e.g. in respect of fake news and the right to be forgotten. Since the internet plays an increasingly important role in our lives, different countries have been trying in their own ways to force IT corporations and social media administrators to obey national laws, in addition to enforcing their platforms’ internal rules of conduct.
I see a serious legal issue here. By adopting and enforcing certain regulations on their platforms, IT giants have effectively created a supranational jurisdiction. The terms of service agreement that we sign to set up a Facebook account contain a set of rules to govern user conduct; these rules are not subject to U.S. law but come from a commercial company. Although such agreements are not technically laws, they acquire the characteristics of quasi-law as the platform’s audience and influence grow. Social network administrators tell users what they can and cannot do and may suspend a user account for transgression, thus restricting this user’s right to disseminate information. But Facebook users worldwide share content in different languages, making it impossible for administrators to oversee and enforce compliance from the U.S. Companies are trying to deal with the situation by hiring regional content moderators, using AI for content moderation and setting up supervisory boards for conflict resolution, but the authorities of some countries are not satisfied with these measures.
Russia imposes severe restrictions on social networks in Article 10.6 of the Law on Information, IT and Protection of Information, and we can see that social networks are prepared to comply and pay fines, they negotiate with RKN and register local representative offices in Russia to deal with the authorities. We should be realistic and expect these corporations to continue to seek compromises and to comply.
It’s hard to predict what may happen next. We have entered a zone of great turbulence.
What can we do to stand our ground and help more people understand that the situation is serious and independent journalism is in trouble with no one to defend it?
We need to talk about it, there is no other option. If we are silent, the information bubble will continue to create a separate reality, keeping most people unaware that journalists are prevented from doing their job of providing honest, factual reporting and unbiased commentary. The shrinkage of information space and loss of its diversity, alongside the spread of propaganda, will suppress all reporting of urgent issues, but the issues will still persist. If the YouTube is blocked by the authorities and replaced by its Russian analogue – and we all know about the poor quality of Russia’s “import substitution” from examples ranging from cheeses to medicines and more – then even the least informed member of the public will realise that things have gone wrong, but it will be too late to do anything about it.
We need to explain, in terms that the public can relate to, how everyone is affected by the suppression of freedom of speech and independent journalism.
We often find that people just do not understand why they should stand by journalists, because they cannot see how this relates to their own lives. We need to explain that without independent journalism society will not be informed of really important issues or about problems affecting specific individuals. If a problem does not get discussed, it does not exist for government bureaucrats.
A society without journalists cannot raise its voice and say, we need to do something about the environmental pollution in a certain region, to stop building a new landfill or to prevent developers from cutting down a city park to make space for a construction project.
What kind of examples can journalists use to make their case?
They should use compelling examples to show that free dissemination of information is vital and can affect the lives and health of every person and their children. Let’s say a company is building industrial facilities outside of your city polluting the atmosphere and causing disease. Perhaps some people are protesting against the construction, but you are not aware, because nobody is reporting it. Journalists can also address public procurement and corruption-related issues, e.g. why urban transport is worn out despite budget allocations to upgrade the fleet. Perhaps the funds were spent to purchase expensive cars for officials instead of new buses for the public? These are matters of public interest, but most people may never learn about the issues unless journalists raise them.
People have little to no understanding of what independent journalism is and how it should function in a normal society. Propaganda tries to give censorship a positive connotation by presenting it as a means to protect society, in particular the children, from drugs and child porn.
In addition, propaganda often describes something as journalism which it is not journalism at all. According to official ratings, [Russian propaganda mongers] Soloviev, Kiselev, Norkin and others are top-ranking journalists. But these people calling themselves journalists trample the most basic principles of professional ethics. Yet the Russian public is fed the wrong idea that those are the real journalists, rather than the authors of Takie Dela, Vazhnye Istorii, Novaya Gazeta, and others.
Talk show hosts on government-controlled television use extremely inappropriate, derogatory and xenophobic language referring to their colleagues in an attempt to mislead the public into believing that [independent] reporters are not really journalists but some obscure agents working for foreign money.
Propaganda often says that other countries also take steps to restrict harmful content.
Many countries regulate content on the internet – but first, there are distinctive features of such regulation in Russia, and second, why copy the worst foreign practices?
Web content restrictions in Russia are not about things like online casinos or child porn which all civilised countries have banned as dangerous and inappropriate. But in addition to restrictions on this type of harmful content, Russia also restricts beyond all reasonable limits certain neutral and publicly significant information.
While countries worldwide regulate content on the internet, the devil is in the details. In Malaysia, someone charged with spreading fake news can get ten years in prison almost automatically; in contrast, in France or Germany they will have an opportunity to present evidence in their defence, and then only the content which the author cannot justify will be blocked. In Russia, the authorities can block an entire website out of court on suspicion of illegal content, leaving the author no option other than sue the Prosecutor General.
“Everybody else regulates the internet, and so do we” is not a legitimate argument. The internet is a transborder phenomenon; no single jurisdiction can regulate it alone but needs to negotiate with IT companies and with other countries. While the internet is now part of our lives, it is relatively new, and we still need to figure out how to regulate it without making a mess of this complex machinery – which is not only used for entertainment and online shopping but also for the operation of banks, government agencies and mass media, for online education and much more.
The Russian authorities use a similar argument when they refer to the American FARA to justify the “foreign agents” law.
While FARA – the Foreign Agents Registration Act – goes by a similar name as the Russian law, its scope and application are totally different. The American law was passed in 1938 to fight the advancement of the Nazi ideology, and representatives of Nazi Germany were the first to be registered under this law. Later, FARA was used to contain the communist ideology. FARA is essentially a law against political lobbying on behalf of foreign governments and has never been enforced against human rights defenders or independent press. None of the agents registered under FARA are individual U.S. citizens or human rights organisations, and the registered foreign mass media are exclusively state-owned and financed by the governments of their countries of origin – such as television companies from China, South Korea, Canada, and now also Russia Today. An editorial office can challenge a registration requirement under FARA by showing that no foreign government controls its editorial policy. For example, the BBC is funded by a special tax paid by every U.K. citizen, and the corporation argues that their editorial policy is independent of government influence. But Russia Today has never attempted to challenge its foreign agent status in the U.S. by providing evidence that their editorial policy is independent.
Those registered under FARA also include Endеavor, a U.S. legal firm having acted as an agent of Russian Foreign Minister Sergei Lavrov to “help with Oleg Deripaska’s visa status” by negotiating this matter with the American establishment. This is the actual lobbying – not just advancing a certain cause but trying to influence decision-makers such as legislators on a specific issue. I am sure you will agree that this is vastly different from what independent journalists and human rights defenders do.
Over the past year, Russia’s “foreign agents” legislation has been made even more complex and confusing, as well as repressive; do you have any idea why? I suspect that it is more about substandard drafting than political expediency.
It is my understanding that people tasked with drafting these laws focus on the underlying political purpose but neglect the legal aspect. Their legislative language is awful: cumbersome, confusing and vague. Indeed, the technical aspect of lawmaking has seriously declined over the past decade.
One gets the impression that whoever drafts these texts has no legal training whatsoever. Article 6 of the Law on Mass Media which is about mass media – foreign agents is more like a jumble of words; your mind eventually refuses to make sense of what the lawmaker is trying to say or even where the subject and predicate of the sentence are. Get a glimpse by reading the disclaimer which “foreign agents” are forced to add to anything they publish – this disclaimer is a verbatim quote from the law. As some Russian individuals labelled “foreign media” have written on social networks, every time they post a picture of their child, they must add that they do so as “a foreign media … or a Russian legal entity performing the function of a foreign agent.”
Moreover, the vague, one-size-fits-all wording makes it possible to label virtually anyone as a “foreign agent.” By following the law to the letter, anyone, regardless of nationality, as long as they have an account on social networks and have at least once interacted with the world beyond the Russian borders, can be labelled a “foreign agent.” The flawed political logic behind the “foreign agents” regulation is the assumption that Russia is surrounded by enemies and therefore anyone in or outside the country who is critical of the Russian authorities and their policies are by definition foreign agents and must be suppressed.
Do you think the “foreign agents” legislation will eventually be reformed?
I am convinced that it is beyond reform and must be repealed – not only in Russia but also in other countries, because this legislation is discriminatory. Sooner or later, this fact will become obvious to everyone. Political lobbying aside, the way it is enforced boils down to using toxic social statuses and discriminatory methods as a weapon against dissent. Want a law about political lobbying? Make a law about political lobbying. But laws which a number of countries have enacted instead – and a whole range of related enforcement practices – are definitely against public interests.
The mentioned FARA was passed back in 1938, in almost ancient times, during an entirely different historical era. But today, these [outdated] norms are used by governments to justify discrimination and persecution of their own citizens. If you insist on keeping up historical traditions, would you go as far as restore execution by guillotine?
Those who advocate for amending the law argue that while there is no way to have it repealed, there is still a chance to make it more appropriate.
Rationally, I can understand these arguments. I have seen proposals, e.g. from the New People Party’s leader Nechaev and from some [Russia’s Presidential] Human Rights Council members, how this legislation could be “touched up” to make it less discriminatory. Well, thanks for at least bringing it up and trying to do something about it. And if “at least something” gets changed as a result, it may be a positive thing. But this will not fix the situation. It is like negotiating the thickness of prison bars with the prison administration. Amendments may ease the burdens imposed by the “foreign agents” label but may also camouflage the fact that this law is discriminatory and should not exist in the first place.
Do you mean that [potential amendments] may normalise the existing order of things – as if otherwise this law was appropriate to the reality of life?
Exactly! [A person labelled “foreign agent”] may be allowed to skip the disclaimer and to keep their private life private. However, people will continue to lose their jobs and see their lives and careers ruined, but this will no longer be so obvious to the public. The scary thing is that this situation is almost becoming “the new normal.”
So I’m not even sure whether amendments would be a good thing. Take, for example, the [proposed] amendment that only a court – rather than the Ministry of Justice – would have the power to declare someone “foreign agent” following an official warning. We should not have any illusions: our courts will do the government’s bidding. Let’s be realistic: not a single case that went before Russian courts since 2012 ended in favour of “foreign agents.” So a court ruling in this case would only camouflage the fact that the decision is made by an administrative body acting at the direction of the security agencies, the presidential administration or someone else.
While adding a judicial review phase would be the right thing to do in a country with a strong and independent judicial system, in our case this would make no difference, because [Russian] courts would not even try to examine the case or to review documents on the file. This is what we observed time and again in court hearings which found more than a hundred Russian human rights organisations to be “foreign agents” between 2014 and 2020. We witness the same approach today as courts label journalists “foreign agents.”
What struck me in particular was the proposal to introduce a prior warning: one should be warned to stop breaking the law but if they continue despite the warning, they will be labelled a “foreign agent” and entered in the register. The proponents of this amendment seem to believe that one ends up in the foreign agents register for breaking a law.
Let me remind them that the reasons for being classified as foreign agents include dissemination of information and receiving funds from foreign sources. Since when are these things illegal? This would make illegal all [transborder] investments, all joint ventures, YouTube monetisation, student exchange programmes, contacting one’s relatives abroad or holding foreign currency accounts… Any form of international cooperation would be considered illegal.
Another [reason for being declared a foreign agent] is dissemination of information – not some sort of protected or classified information] but any information shared with “an unlimited circle of people.”
As one can see, even members of [the Russian] parliament perceive the foreign agent status as penalty for breaking the law. But this assumption contradicts the numerous laws protecting the freedom of employment, entrepreneurship and economic relations, the freedom of expression and the freedom to share information, as well as those protecting privacy and prohibiting discrimination. This contradicts even with the Russian government’s official position on foreign agents which they have reported to the European Court [of Human Rights] and which the country’s president has voiced, namely “no problem, just label yourself and ask to be put on the register, and everything will be fine, you can go on with your life as before without any discrimination or restrictions.”
There is obviously a huge gap between this statement and the way the situation is perceived by everyone at all levels.
Are things getting worse?
In the current context, I do not see any prospect of a solution by changing the law. A contributing problem is the deep division within the media profession itself. Numerous state-controlled media practice servile journalism, virtually acting as press agents for the government, and feel safe. In contrast, people working for independent media outlets feel as if they are sitting on a powder keg. As independent reporting comes increasingly under pressure, journalists with state-owned media keep quiet at best or join in the attacks at worst. As an illustration, film crews from one or even two federal TV channels have accompanied the police during the recent searches of homes and offices of investigative journalists declared “foreign agents.”
The situation is particularly hard for provincial journalists who watch with fearful apprehension other colleagues and editorial offices being declared “foreign agents” but can do nothing about it. Almost all media outlets in the provinces are heavily dependent on the administration and really need state contracts for survival, so they are too scared to raise their voices and only hope to somehow avoid this fate.
Provincial journalists 7-10 years ago and now are two very different groups in terms of attitudes and self-perception. When the Mass Media Defence Centre was declared “foreign agent” in 2015, the entire media community in Russian regions rallied in our support. Within a week, they set up a website to campaign for us, and many editorial offices that did not even know us personally put up banners stating that the attack on the Media Rights Defence Centre was also an attack on them. A nationwide advocacy campaign was launched.
But today, provincial media are more dependent on the government and respond differently. When I was labelled “foreign agent,” a wave of support came from independent journalists and editorial offices and from civil society, but the local journalists in Voronezh and neighbouring provinces who have known me personally for 25 years and whom we have defended on many occasions in court, largely remained silent. Except that some sent me private messages sounding somewhat like, “Nothing personal but I have a family and must pay the mortgage, and I really need my salary of 40,000 rubles, because there are no other jobs and no other media available; I feel really sorry for you but there is nothing I can do.” It was nothing like that seven years ago.
How has this pressure affected the profession? I will share two perspectives: some say that a lot of bold small-scale projects have emerged as a result, and some others observe that apathy has set in, while those labelled have radicalised and tend to ignore the professional standards. What is your own opinion?
Oddly enough, both perspectives seem to be true.
First, indeed, journalists tend to radicalise as they feel cornered and find it really hard to remain neutral as required by “peacetime” professional standards. Living in a state of turbulence inevitably affects their outlook, and virtually half of their reporting is about “foreign agents,” torture in prisons, Roskomnadzor-imposed fines, website blocking and the like. These are insanely important topics that need to be covered, especially since the state-owned mass media are silent about the real situation with the media and human rights. But even journalists feel that there may be too much negative coverage. Where is the right balance? Silence is not an option either.
The press cannot function normally under this amount of pressure; journalists become hostages to the stress of being in the centre of this tornado, and this is extremely harmful and should never happen to anyone.
Indeed, many give in to apathy – in particular those who try to hold on to their profession, however much it has changed, rather than give up and switch to working as a cashier in a supermarket. Many editorial offices which are loyal to the authorities are well aware that what they produce has nothing to do with journalism, and it makes them feel bad.
But not everyone is a hero prepared to leave everything behind and start their own media project or to leave Russia and work as a journalist elsewhere, also a radical step to take.
But on the other hand, the growing intensity of the situation is obvious even to those who have tried hard not to notice it, and in this context, young journalists often choose careers in public relations and advertising rather than the mass media. Only those with principles still choose journalism.
In the absence of honest reporting, many lay people, including schoolteachers, traders in a local market, you name it – write in their personal blogs about local problems such as bad roads, etc. They essentially fill the niche of quality provincial journalism. Such lay reporters operate at their own risk, because once big and visible, their blogs become targets.
The authorities have been buying bloggers en masse to adapt to this new situation. It used to be that only large local media outlets were contracted to report on the government’s activity, but today provincial governments recruit local bloggers and authors of telegram channels and get them hooked on public funds. The authorities have realised that they must reach out to their audiences using new media platforms as well as the conventional television.
Why did you decide 25 years ago to make media law your career?
It happened by chance. We did not even study media law as a subject in my law school. When I graduated, I knew less about the freedom of speech than school teenagers know today: my knowledge was limited to Article 29 of the Russian Constitution. The law on mass media had yet to be adopted, and there was no internet. An acquaintance said that the Glasnost Defence Foundation in Moscow was looking for a provincial lawyer. It made no difference for me where to earn job experience. I already knew what glasnost was about and learned the rest on the job.
And then I got hooked; information law is such an exciting, dynamic sphere practiced by amazing people who are so committed to defending freedom of speech that their passion infects you.
Who could have thought 25 years ago that defending journalists would someday be more dangerous for a lawyer than defending maniacs and gang members?
I am a very peaceful person at heard, “white and fluffy,” as they say. If it were not for all of this, I would be living a quiet life, perhaps doing embroidery as a hobby; but this is how life turned out and I have no regrets.
Since the pressure is getting worse, are you planning any radical changes in your life?
No, I will continue to work as before. Having practiced in this field for 25 years, having made it your mission and built the expertise, it is too late for radical changes. And I don’t really wish to do other things, because I sincerely believe that I can make a difference. Many journalists need our help, legal advice and protection in these challenging times.
I could compare it to being a doctor who can provide life-saving cancer treatment but is being pushed to take up a job in retail. Where can you be more useful? My job may be challenging, stressful and at times dangerous but it is necessary and valuable despite all the risks.
But I understand the dangers of the “narrowing funnel.” The government has the power to make things even harder for us. A week after I was declared “foreign agent,” I was informed that I would no longer teach the university course in legal regulation of journalism and the internet that I had taught for 12 years. While the university was not afraid to have me despite the “foreign agent” status of my NGO, they gave up under tougher pressure as I was personally labelled a “foreign agent.” Everyone understands that there are no legal grounds for this whatsoever, but fear and loyalty prevail today. This will teach my students an important life lesson, though.
And may this be the most unpleasant thing [to happen to me], but of course I cannot tell what might follow. I have a son who is an undergraduate, and I would not want his life and his studies to be adversely affected by all these cataclysms. Therefore, I will peacefully challenge my “foreign agent” status in national courts and then take my case to the European Court of Human Rights, as we have been doing with dozens of similar cases of journalists entered in the register. This is a civilised way to disagree and ultimately to restore justice, because it has no statute of limitations.
I will make every effort to continue helping people for as long as I can. And of course, I will try to keep myself safe so I can do my job.