Galina Arapova: “You get the uncomfortable feeling of trying to break a wall with your head…”

Published by Dmitry Shabelnikov at 28/11/2018

Source: 7x7-journal.ru

Galina Arapova has been directing the Mass Media Defense Centre, one of the oldest Russian specialized NGOs, since the time of its inception in 1996. We spoke with Galina about the fight for freedom of expression in Russia today.

Most challenges faced by Russian journalists and media outlets today are linked to the actions of Roskomnadzor. This government service has recently been given extensive powers to control the internet. Previously, they were responsible only for registering mass media outlets and exercising rather superficial oversight of compliance with the media law, but now their scope of authority also includes dealing with personal data and extremist materials, maintaining a registry of bloggers (until earlier this year when it was abolished) and a registry of copyright infringements, blocking access to websites, and more.

Roskomnadzor’s actions can be triggered by anything related to dissemination of information, especially that critical of government or considered extremist whether or not it incites anyone to anything offensive. This may include pictures, demotivators, memes, jokes with religious overtones, etc. Their publishers can face large fines, blocked access to websites and even closure. We have been receiving so many calls for help recently that we are sometimes overwhelmed and unable to process all of them. The reason is that the government is extremely concerned about information security and regards control of the internet as a strategic priority.

Defending freedom of expression in court has become much more difficult, particularly when one’s adversary is the state. In the case of online content, court proceedings are always initiated by the federal Roskomnadzor, regardless of whether the other party is an independent website or an electronic version of a local newspaper. All administrative cases filed against editorial offices located in Vladivostok, Rostov and other cities across Russia are heard in the Tagansky District Court in Moscow; furthermore, absolutely all complaints brought by media outlets against Roskomnadzor’s measures are considered by one and the same judge, Julia Smolina, known, inter alia, for having ordered to block access to the Telegram messenger. So far, Judge Smolina has never ruled in favor of a media outlet. This means that the outcome is always predetermined. You get the uncomfortable feeling of trying to break a wall with your head. Certainly, the lack of an independent judiciary combined with such a harsh repressive approach to regulating online content cannot but raise serious concerns.

Dangerous Hyperlinks and Taboo Topics

Numerous cases involve hyperlinks, because many online media host popular bloggers. For example, the Echo of Moscow website features an extensive blogger section with content posted by a variety of bloggers including journalists, public figures, writers, actors, and others—many of whom have limited knowledge of the information law.

For example, relatively recently, Ksenia Sobchak travelled to Chechnya as part of her presidential campaign. While there, she was approached by a group of young men who yelled obscenities at her. Ksenia wrote about it in her blog hosted by the Echo of Moscow, adding a hyperlink to a YouTube video of the incident. The authorities then charged the Echo of Moscow for dissemination of obscene material, although the verbal attack in question was a matter of public importance and targeted only Ksenia Sobchak who shared the link. No one else could be offended in this case.

One of our regular clients, a large regional web portal with a human rights focus, has periodically faced administrative charges for hyperlinks posted by external bloggers and containing obscene language (not necessarily targeting anyone in particular or intending to offend), wrong age labelling, etc. We have received many cases of this kind.

Recently, the same portal published an interview with Mikhail Svetlov in which he discusses the issue of legalizing drugs. As a result, the web portal editors were fined 840,000 rubles [11,000 euro] for “propaganda of narcotics.” Recently, even more topics have become too dangerous to cover. For example, writing about methods and causes of suicide as well as encouraging suicide has been prohibited. In this category of cases, the overseeing agency is not Roskomnadzor but, somewhat ironically, Rospotrebnadzor, a service responsible for consumer protection. They do not raise political issues, only technical matters. It is also prohibited to disclose any personal data of underage crime victims, under threat of a million-ruble [over 13,000 euro] fine. But what if a child is lost and it is not known whether or not they are a victim? How to deal with child abuse in families? Seeking parental consent is not always possible or advisable. All this is very problematic.

Media critical of the government or those who consistently cover human rights have come under particularly close scrutiny, facing disproportionally more complaints from Roskomnadzor than neutral news outlets. A great many journalists are outraged by the selective enforcement and wonder why a regional newspaper should face a multi-million fine for writing about child victims of crime, while a federal TV talk show can get away with airing any topic they like down to the ugliest detail.

Nazi Symbolism

My favorite example of ill-conceived legislation is Russia’s absolute ban on public demonstration of Nazi symbols or anything similar to Nazi symbols to the point of confusion. In its earlier version, the law banned their promotion and public demonstration meaning that such symbols should not be displayed with the purpose of promoting them. Then the text was amended, with “and” replaced by “or” which has led to a major change in meaning. Now any public display of Nazi symbols is banned; technically, the ban should apply to any demonstration of the swastika for educational or artistic purposes, including popular World War II spy films or documentaries about fascism. It does not matter if someone publishing such materials is an historian or an anti-fascist who deplores Nazi ideology rather than promotes it in any way.

For example, a young woman in Smolensk faced administrative charges for posting a wartime photo in her blog showing the courtyard of her house, with troops lining up under a Nazi flag. While the administrative penalty in this case is fairly low, one to two thousand rubles [13-26 euro], which is less than a fine for many traffic offenses, it has other serious implications. Since public display of the swastika is officially an extremist activity, the offender is automatically put on the list of extremists meaning that their bank accounts may be frozen, they will not get a job involving contact with children, and may have difficulty traveling outside and even within Russia.

They may face all kinds of restrictions, and getting taken off the list is no easy task. Their only crime is having published an archival photo or a wartime anti-Nazi cartoon. There have been many cases like this. When someone is charged under article 20.3 of the Code of Administrative Offences, their case adds up to the statistics of “countering extremism.” When another young woman in Krasnodar was interrogated for publishing a wartime poster by the famous Soviet caricaturists Kukryniksy, she tried to explain, “But this is a famous poster by Kukryniksy!”—“Who is he?” the investigator asked. She said, “Artists…” – “Okay, we’ll find them and charge them as well.”

Charges for having swastika tattoos have been brought against inmates serving prison terms. There are multiple cases in the Russian Judicial Information System of inmates prosecuted for displaying a swastika on their body as they undressed to take a shower. This means that no criminal intent needs to be proven to prosecute. By its very purpose, this legal provision is dangerous for society. A total ban on showing Nazi and similar symbols means that all 7th grade history textbooks must be withdrawn and all WWII museums in Russia closed.

Actually, this provision is not just about the swastika but about a broader range of symbols. Yet most charges involve the swastika and similar crosses such as Kolovrat, Maltese cross, and Celtic cross. There is another interesting point that few people have noticed. At the time Article 20.3 of the Administrative Code was amended, changes were also made to the Law on Honoring the Soviet People’s Victory in the Great Patriotic War of 1941–1945 by expanding the types of organizations whose symbols must not be displayed. One really needs a doctoral degree in history to make sense of that provision introduced in 2014, six months before the celebration of the 70th anniversary of the victory in World War Two. The law requires the government to prepare a list of such organizations. ¹“… [those which] collaborated with groups, organizations, movements or persons found to be criminal or guilty of committing crimes in accordance with the verdict of the International Military Tribunal for the Trial and Punishment of Major War Criminals of the European Axis (Nuremberg Trial) or the verdicts of national, military or occupation tribunals based on the verdict of the International Military Tribunal for the Trial and Punishment of Major War Criminals of the European Axis (Nuremberg Trial), or by verdicts passed during the Great Patriotic War, World War II,” as well as “organizations (including foreign or international ones) that deny the facts and conclusions established by the verdict of the International Military Tribunal for the Trial and Punishment of Major War Criminals of the European Axis (Nuremberg Trial) or verdicts of national, military or occupation tribunals based on the verdict of the International Military Tribunal for the Trial and Punishment of Major War Criminals of the European Axis (Nuremberg Trial), or by verdicts passed during the Great Patriotic War, World War II. ” (Article 6 of the said Law.) In particular, there have been plans to include the Banderites [Stepan Bandera’s followers in Ukraine] in the list. However, the definition of banned organizations is so broad that it creates uncertainty. We may never have heard of some such organizations—e.g. some local group banned after the war by a Romanian court with reference to the Nuremberg Trial. Indeed, one needs in-depth specialist knowledge of this period in history to understand which particular organization is in question. To complicate matters even more, there are two more registers of banned organizations: the FSB’s list of terrorist groups and the Ministry of Justice’s list of extremist groups. Their symbols are also banned from demonstration in public—such as the banner of some obscure “Minin and Pozharsky Popular Militia”. The police as well as the public have been struggling to make sense of all these bans and only punish people for the swastika, since the swastika is something the police can easily identify.

About the websites of Grani.Ru, Kasparov.Ru and Ezhednevny Zhurnal

Access to these websites was blocked in March 2014, literally a month after the adoption of the amendments to the Federal Law on Information, Information Technology and Protection of Information (the Lugovoy Law). These amendments permitted the Prosecutor General to block access to websites without a court ruling for three reasons: if the website contains calls to riot, to engage in extremist activities, or to participate in mass events held in violation of the law. The adoption of this law was a purely political decision.

The Lugovoy Law was first tested on the websites of Grani.Ru, Kasparov.Ru, and Ezhednevny Zhurnal. Access to the three websites was blocked on the same day by the Prosecutor General’s order indicating that the websites either contained extremist materials or called to participation in mass events held in violation of the law, such as unsanctioned rallies. Since all this occurred soon after the “White Ribbon” campaign [after the December 2011 Duma elections] when people used the internet to organize rallies and protests, a pretext was easy to find.

Grani.Ru have been launching mirror websites, which Roskomnadzor continues to block; over 450 mirrors were blocked a year ago, by now there are many more. Their publications can be followed on social networks, but formally, access to these websites is prohibited in Russia.

The number of their readers has dropped dramatically as a result, since not everyone can use a VPN. Indeed, many users, due to their age, do not even know the term VPN. Since the regular contributors to the websites still want to be read, they need to reconsider whether to continue publishing their writing there or to find other platforms to share their opinions with a wider audience.

The cases of all three websites have been taken to the European Court of Human Rights. Our lawyer who has represented Ezhednevny Zhurnal domestically is now representing it before the European Court. We have already exchanged submissions with the Russian government and expect a judgment before the end of this year.

On Draft Amendments to Article 282 of the Criminal Code

By itself, the proposal to create a “buffer” of administrative, instead of criminal, liability for first-time hate speech offenders (Article 282, Part 1 of the Criminal Code) is certainly something positive. ²This draft was launched in the Duma by the President in early October and passed in first reading on 15 November 2018; its final adoption is expected before the end of the year. I am concerned, however, that journalists often describe it as “abolition of criminal liability for likes and reposts in social media.” Reposts are just one way of disseminating information. Other options are to publish something rather than repost, to write a comment, to speak out on the street or to distribute flyers. Limiting the issue to reposts in an incorrect and misleading interpretation.

One needs to understand that this apparent “liberalization” only gives people some extra time before they might face criminal charges. It is in fact very easy to charge a person with an administrative offense and then, leaving a few months for appeal under the administrative procedure, to find another publication on their webpage. This may then be interpreted as a repeat offense, triggering criminal liability.

Administrative liability occurs for the first violation in the course of one year. Who can guarantee that law enforcement authorities would not select a few publications on a user’s webpage and target one of them for bringing administrative charges and the rest for criminal prosecution? They can do it easily if they want to. Administrative liability will not be a barrier for authorities wishing to prosecute someone.

Moreover, all other “extremist” offenses have been left as is, untouched by this amendment—such as incitement to extremist activity or insulting the feelings of religious believers—and still call for criminal liability even for first-time offenders. So I am absolutely not sure that the amendment will make a big difference in practice. Instead, it seems to send a signal, as we often say, to the law enforcement agencies to “hold their horses” and not to overdo it. In fact, there have been other signals to this effect, not limited to this amendment. Putin has made statements urging to approach this matter “carefully,” “thoughtfully” and so on.

In any case, if these are attempts to balance the judicial practice under Article 282, they are long overdue. If only Article 282 were the only anti-extremist piece of legislation, [then it would not be so bad at all]. Even more problematic are the provisions on incitement to extremist activity and insulting the feelings of religious believers. As to Article 282, its enforcement practice includes some well-founded sentences for really offensive racist statements and radical nationalist remarks. These cases are not covered as much, but some sentencing under Article 282 is totally appropriate.

Another important point: the Council of Europe recommends that criminal sanctions, particularly imprisonment, should only be applied when hate speech publicly incites violence. However, the first part of Article 282 does not concern incitement to violence. Even the theoretical possibility of criminal prosecution for hate speech which does not intend to incite violence is too repressive. In addition to the Council of Europe’s recommendations, the UN’s Rabat Plan of Action indicates that although hate speech is certainly dangerous and merits legitimate restriction of freedom of expression, any such restrictions imposed by the state must be proportionate. This document explicitly states that while criminal sanctions are a legitimate response to hate speech, other measures, such as administrative sanctions, should also be considered. Criminal sanctions should be seen as last resort measure to be applied only when it comes to the most severe forms of hate speech which involve public incitement to imminent violence.

Therefore, a real reform should involve a complete abolition Article 282, part one, and—in my opinion—also an abolition of parts one and two of Article 148 (insulting the feelings of religious believers), because the latter has been applied arbitrarily in most cases. Created for situations where the incitement to violence criterion does not apply, it essentially duplicates the provision on “incitement to religious hatred.” Moreover, it misleads law enforcement authorities by relying on terminology which usually refers to “hooliganism,” or disorderly conduct. The definition of this offense mentions “acts expressing disrespect for society,” which is the exact terminology from the article on “hooliganism.” The term “insulting” is also misleading because it implies indecency. Does an insult to the feelings of believers always involve indecent forms of expression? Remember the case of Ruslan Sokolovsky charged with playing Pokemon Go inside a Russian Orthodox church? The manner in which Article 148 has been applied raises even more questions than the application of Article 282. As for Article 280, “incitement to extremist activity,” I would describe it as a “one size fits all” provision that largely duplicates Article 282, since the definition of “extremist activity” in Article 1 of the Law on Countering Extremist Activity contains an incredibly long list of activities ranging from “classic” hate speech to calls to overthrow the state, public demonstration of Nazi and similar symbols, and interference with voter rights during elections. Once again, the problem is that incitement to violence is not a criterion [for Article 280 to be applied], nor is it a necessary element of the offense, while the concept of “extremist activity” is incredibly vague and broad. As a result there is uncertainty as to whether a public call to certain actions constitutes a criminal offence under Article 280. Therefore, I find Articles 148 and 280 to be much worse than Article 282, because those two have resulted in a far greater number of controversial prosecutions and lend themselves to arbitrary interpretation in virtually any case.

Back to the proposed amendments: I find it hard to guess the President’s motives, but this was probably a populist move. In reality, however, no such thing as “abolishment of criminal liability for likes and reposts” is going to happen. Instead, it is a band-aid solution [in response to voiced public concerns regarding the issue]. “So you asked for it? Here it is.” But do not expect radical changes. Articles 280 and 282 are very similar in both wording and sanctions. Experts have argued on many occasions that they duplicate one another. But for some reason, while amending Article 282, they have not changed Article 280. If the authorities decide to prosecute, they can always use the other option and bring charges for “calls to extremist activity.” For example, the infamous “Kill the Jews” phrase could be treated both as “incitement to ethnic hatred” and as a “call to extremist activity.”

About The New Times Fine

Draconian provisions (Article 19.2 of the Law on Mass Media and Article 13.15.1 of the Administrative Code) were recently adopted which logically follow from the state’s broader policy regarding “foreign agents,” Western influence, etc. They require that mass media outlets to submit quarterly reports to Roskomnadzor on funds received from foreign sources or from “foreign agents.” The New Times has missed several deadlines for filing such reports. They had funding from a Russian organization which in turn received funds from another organization, their founder. The law provides for a fine of twice the amount of funds received. This resulted in an absurd fine of 22 million rubles [over 290,000 euro]. Judging by how the situation evolved, the case was pursued at the bidding of a superior authority. Despite the legally established three-month statute of limitations, The New Times was charged retrospectively for two previous years. Moreover, once they received a notification from Roskomnadzor, they filed a report for the previous year and thus should not have been charged for that period—and even for a longer period ending three months [before the charges were brought]. Commenting on the procedural aspect of the case, [the publication’s lawyer Vadim] Prokhorov referred to the ruling of the Russian Supreme Court’s Plenary stating explicitly that no one should be brought to administrative liability beyond the statute of limitations. In fact, the judge agreed with the lawyer and sent the report back to Roskomnadzor with reference to the missed deadline. However, the complaint promptly came back before the court and was considered once again in a very strange manner: first, the court heard an appeal and then, two hours later, held a [second] first-instance hearing of the case after the appeal. This was indeed a demonstrative pursuit of the publication [with the purpose of punishing it]. I do not believe that whether or not The New Times made an error in filing its reports was the real issue. If the purpose had been to point out to them that reports needed to be filed, it could have been done without imposing a 22 million fine for two previous years. ³In November, the publication collected some 27 million rubles in just a few days (in addition to paying the fine, they plans to spend the remainder on “lawyers and the functioning of the publication.”) On November 20, the Tverskoy Court of Moscow turned down The New Times chief editor and editorial board’s appeal against the magistrate’s decision.

This is the first case of its kind. According to Prokhorov, the Supreme Court must either revisit and change the ruling of its Plenary or overrule the [magistrate’s] decision. The lawyer still has some limited hope [for the case to be resolved in Russia], but the publication is prepared to take its case to the European Court of Human Rights; we have already discussed this option with them and are prepared to help. As well as being the first of its kind, this case is remarkable for the steepness of the penalty imposed and the total disregard of the Supreme Court’s legal position. The first-instance court was not obligated even to hear the case on its merits: on procedural grounds, Roskomnadzor’s request for a 22-million fine had no chance whatsoever of being considered, and yet it was. Typically, courts prefer to be careful in such situations: a missed deadline is a serious reason [to cancel a decision]. However, even in these circumstances, the court was not allowed to get away with it and forced instead to adopt the required decision in the toughest possible manner, with first- and second-instance hearings held on the same day.

Positive Trends

There is no such thing as positive trends in Russia today—rather, there are certain individual facts [which are positive], such as the fact that “bloggers’ register” has been abolished. Initially, the idea frightened everyone: any blogger included in the register would be required to comply with the law on mass media just as if he or she were the editor of a major publication. But the law was a total failure. The register was set up and maintained for a while by Roskomnadzor. But [the problem was] that the law required any internet user with a webpage receiving more than 3,000 visitors per day to be put on the register. This would make Dmitry Medvedev’s twitter, Roskomnadzor’s twitter and numerous others liable to be listed in the register. At some point, Roskomnadzor tried to reassure people by saying that they were not going to list absolutely every blogger; instead, they said, the register was designed only for listing “political” bloggers but not those who posted, say, pictures of cute kittens. In fact, they made matters even worse by publicly admitting their intention to apply the law selectively. Earlier this year, in January, the register of bloggers was abolished. This makes me happy.

But there is really nothing else in particular that I could describe as positive. Not so long ago, the Yarovaya Law came into force. The only positive thing is that compliance with this law is impossible. It obliges telephone and internet providers to store records of all cellular user communications for six months and all metadata—who one talks to and how many times, web activity (what you downloaded and what sites you visited) and types of such activity—for three years. Non-compliance will cost providers exorbitant fines and loss of license. But in order to store this enormous amount of information, providers will need to purchase new and very expensive equipment. Four major providers have announced that they do not intend to bear the extra cost on their own. So we can all expect an increase in tariffs for internet and mobile phone communication.

As for the September Resolution of the Russian Supreme Court [on the judicial practice in cases of extremist offences]: in my opinion, the Supreme Court’s clarifications are hardly needed in a normal justice system. [Whether before or after the Supreme Court’s ruling], courts are obliged to fully consider the context of a publication in question, taking into account the defendant’s outlook, and to examine whether the defendant agrees with a particular statement or contests it, whether they “like” it or comment, “see how awful it is.” The fact that courts have failed to do so (and may continue to fail to do so) reveals their merely formalistic approach—which, unfortunately, is common in most criminal and administrative proceedings.