In an exclusive interview for Legal Dialogue, lawyer Tatyana Glushkova and journalist Vladimir Shvedov discuss the multiple forms of ‘foreign agent’ labels in Russia today and their implications for those affected.
Since the end of 2020, Russia’s legislation on ‘foreign agents’ has turned into a monstrous hodgepodge of ‘individuals-foreign agents’, ‘mass media-foreign agents’, with new types of ‘agents’ added on top of old ones. What has actually changed? Why was there a need for these strange legal constructs?
To make sense of what is going on today, let us go back in time to 2012. What did the ‘foreign agents’ legislation look like before the recently added regulations? It applied only to NGOs incorporated as legal entities. Being added to the ‘foreign agents’ registry imposed two types of obligations on them:
– additional reporting and annual audits;
– putting a ‘foreign agent’ label on all their publications.
So they were not explicitly restricted in what they could do other than facing this cumbersome redtape, right? What were the main negative consequences of being declared a ‘foreign agent’?
Each additional report they were required to file created a new risk of penalties should they accidentally miss the deadline. Indeed, fines imposed on ‘foreign agent’ NGOs for late submission of reports are much higher than those faced by NGOs which are not in the registry. Missing just one day could land you with a fine of 100,000 rubles or more.
Report preparation diverts human resources, and annual external audits are costly. Smaller organisations with perhaps just a couple of employees were hit the hardest, while larger NGOs like Memorial were in a better position to cope with this part of the requirements.
Much has been said over the past eight years about the extremely unpleasant obligation of putting a ‘foreign agent’ label on all publications, because it means ‘spy’ for the Russian public.
In addition to this, it is unclear what exactly must be marked with the ‘foreign agent’ label. Perhaps if you want maximum protection from a fine, everything, including employee business cards, must carry this inscription, as well as any printed materials – even a printout the Russian Constitution if you produce it for distribution.
Indeed, many questions are still unanswered. Should NGOs label their social media? There used to be no penalties for not labelling social media, but the authorities started imposing such penalties in 2019. We cannot rule out that they will soon require each post in social media to be labelled. Currently, this requirement only applies to ‘mass media-foreign agents’. Check out Meduza’s Twitter to see what their posts look like.
Another important consequence of being declared a ‘foreign agent’ is no further cooperation with any government agency and even with some private partners who immediately refused to deal with such NGOs.
Some organisations – such as the FBK anti-corruption foundation – had always faced this situation and were prepared. But some others, such as Civic Assistance, an NGO helping refugees and IDPs, used to engage with migration services and to conduct legal seminars for their employees. Today, of course, no civil servant would even think of attending a seminar offered by a ‘foreign agent’.
So even in absence of formal restrictions, being declared ‘foreign agents’ was a hard blow on many NGOs, because it automatically stigmatised them as ‘public enemies’ and their work as objectionable for the state, causing their former partners, including schools, universities or libraries, to avoid any further contact with these organisations.
As of today, how many NGOs have been declared ‘foreign agents’?
There are currently 76 organisations on the list, but keep in mind that many organisations have been taken off the registry – some because they chose to dissolve and some others because they stopped receiving foreign funds. The list of NGOs removed from the ‘foreign agents’ registry is not publicly accessible but kept by the Ministry of Justice (MoJ) on their internal records. The highest number – 81 NGOs – were added to the registry in 2015.
In 2016, the law was amended to clarify the term ‘political activity’. Does it mean it was not clear enough to begin with?
The initial definition of ‘political activity’ was so broad and speculative that it could technically apply to any activity, such as reporting to a UN treaty body or posting the NGO’s annual report on its website (which is required of non-profit organisations). Both are real-life cases which affected the Memorial Anti-Discrimination Centre and Women of the Don, respectively. The vague definition actually made it possible for some organisations to challenge the ‘foreign agent’ status in court – e. g. the Levada Centre was declared a ‘foreign agent’ for publishing the results of opinion polls and articles on Russia’s domestic and foreign policy but was able to use the vagueness of the ‘political activity’ definition to argue their case in court.
But in 2016, the Russian authorities stopped trying to hide their real intentions: from that moment on, any type of civic activism has officially been considered political activity, including public appeals to government agencies and officials, voicing an opinion on government policy or conducting opinion polls, let alone organising protests or observing elections.
What prompted the government to impose new and tighter norms?
As for the new norms adopted in recent years, in particular in recent months, their underlying purpose was to finish off the remnants of civil society in Russia – apparently out of fear of truly massive protests like those observed in Belarus last year.
By looking at the entire body of laws and regulations, both already in effect and in the pipeline, one can see that the authorities seek to control any potential activity of civil society and severely restrict civic engagement of any type, not limited to human rights defence or political opposition.
So, it is no longer about formal requirements but actual and severe restrictions?
Yes, and lots of them. To begin with, registered non-profits which are labelled ‘foreign agents’ face total control by the authorities. From September 2021 and onwards, they will be required to notify MoJ of all their planned programmes and events and then to report at the end of the year whether these activities have or have not been implemented.
At its own discretion, MoJ can prohibit any such activities at any time just by sending a letter to the NGO. By complying with the prohibition, the NGO will be forced to terminate part of its operation and by refusing to comply, it can face MoJ-initiated dissolution by a court, so the outcome is basically the same either way.
Is it true that activities may be prohibited for reasons other politics? MoJ officials may not like some activity, such as distribution of clean syringes to drug users, and serve a warning to the organisation to either stop it of face dissolution.
Exactly. Indeed, there is no formal list of reasons – even approximate – as to why an activity may be prohibited. Another thing to keep in mind is that even before the new regulations, Russian law already made it perfectly possible to stop illegal activity of any organisation: e. g. even without a ‘foreign agent’ label, an NGO promoting violence or discrimination could be stopped immediately.
Although MoJ officials are required to give some sort of reasons when they tell an NGO to stop a certain activity, such reasoning cannot be challenged. Let alone giving out syringes to drug users, even giving out condoms to prevent the spread of HIV could be found objectionable: MoJ might reason that the official HIV prevention policy is to promote ‘family values’, while condom distribution encourages promiscuity and therefore must be stopped immediately.
There is another important change for NGOs which are incorporated as legal entities and labelled ‘foreign agents’: the head of the organisation, its founders, members or participants and everyone serving on the governing bodies must disclose their connection with a ‘foreign agent’ when they make a ‘political statement’ broadly understood as comment on any matter of public significance.
For example, since this March, as a board member of the Memorial Human Rights Centre, I have indicated this affiliation in all my social networks accounts, even those where I mainly post the photos of my cat, because a single ‘political’ post without this label could cost me 5,000 rubles.
In terms of media coverage, we are treated in much the same way as a terrorist organisation like ISIS. Media outlets are required to indicate our ‘foreign agent’ status every time they mention us. There is no requirement – at least for now – as to the exact wording, so I rather like the formulas used by some journalists, e. g. ‘the so-called foreign agent’.
Okay, it’s clear about the ‘foreign agent’ status for legal entities. But what about some other recently added types of ‘foreign agents’?
One such new and rather weird concepts is an unregistered organisation – ‘foreign agent’.
Russian law makes it possible to set up a non-governmental association with its own charter, governing bodies etc., which operates without being registered as a legal entity. There is a separate ‘foreign agents’ registry now for such unregistered associations.
But some activist groups operating without a legal entity do not even have a formal structure or a charter. These include Liza Alert, a search-and-rescue volunteer-based organisation, and self-organised volunteer groups delivering packages to detainees in police detention centres. There have been lots of such initiatives, big and small, emerging since 2012. For example, hardly any LGBT organisation in Russia seeks to be formally incorporated as a legal entity, knowing that they will be refused anyway. Instead, they get together as an initiative group, choose a name for themselves and start doing some work.
Now for the interesting part: what if such an informal group is declared a ‘foreign agent’? They will be required to make available to MoJ their charter and list of founders and leaders.
But how – if they are not a legal entity?
The law assumes that unregistered nongovernmental associations operate in much the same way as registered NGOs but without official registration. Apparently, the Russian authorities have never heard of horizontal associations, such as networks, or informal groups which operate without any kind of a written charter.
Let’s imagine a case of ten human rights activists getting together in Yekaterinburg to set up an informal group which they name ‘Square’. Every year, three of the group’s leaders are replaced and seven other members come and go. The authorities declare the group a foreign agent. What are the consequences for the group?
Persons whom the authorities consider to be the group’s founders, members, participants or leaders would be required to disclose their affiliation with the ‘foreign agent’ on their ‘political’ posts in social media.
It is unclear today how the authorities would establish membership with informal ‘foreign agent’ groups. I suspect that some people will learn about their ‘affiliation with a foreign agent’ from a formal notification of having committed an administrative offence. The penalty for non-disclosure is 5,000 rubles – the same as for members and leaders of incorporated ‘foreign agent’ NGOs.
How will the authorities prove that an organisation receives foreign funding and uses it to finance its operation?
It is a big question. Technically, they need to establish a connection between the group’s activity and some bank account (belonging to an individual or a legal entity) to which funds have been transferred from abroad. How they will do this and what ‘standard of proof’ they will use is still unclear. But based on their treatment of ‘foreign agent’ NGOs, my outlook is pessimistic. I do not rule out that they will ‘prove’ foreign funding by locating a money transfer from outside Russia to a bank account linked in some way to a person believed to be involved with the group – this might be sufficient for them to declare the group a ‘foreign agent’.
I note separately that in terms of the origin of funds, a foreign source is all that matters. There is no difference between a donation to support the group’s work and a gift to a group member from his granny living in Minsk.
But back to our unregistered group named ‘Square’. Suppose one of its ten members is employed as a programmer with an international company and spends some personal money to support the group’s activities – or even if he uses his own printer to print out the group’s leaflets – this would be considered foreign funding, notwithstanding the amount.
What happens after an unregistered group is declared a ‘foreign agent’?
First, any statement made on behalf of the group and all its outgoing documents must carry the ‘foreign agent’ label. Penalties for non-compliance are considerable: 50,000 to 100,000 rubles for members and 100,000 to 300,000 rubles for leaders.
As I said, all members, participants, leaders, etc. of the group will have a duty to label all ‘political’ statements made on their own behalf or face a 5,000-ruble fine.
In addition to this, the group will be required to report on a quarterly basis any foreign funds received and the way these funds are spent. The unregistered group’s leader can be fined between 10,000 and 30,000 rubles for late submission or failure to submit such report.
And, of course, all mass media will be required to note the status of a foreign agent every time they mention this unregistered group.
WHAT IF YOU ARE JUST AN INDIVIDUAL?
I understand that now an individual can be declared a ‘foreign agent’ even if he or she is not part of any organisation or group, right?
Yes, an individual who receives foreign funding and engages in ‘political activities’ can be declared a ‘foreign agent’. There are two such statuses for individuals: individual-mass media-foreign agents and simply individual foreign agents (although technically, nothing can prevent being assigned both statuses at once).
There is a separate category of ‘individual foreign agents’ believed to be collecting information which threatens Russia’s military security.
But let us start with ordinary ‘individual foreign agents’.
They face basically the same requirements as unregistered groups with the ‘foreign agent’ status, i. e. to report their receipt and spending of funds from foreign sources (on semi-annual rather than quarterly basis) and to label any materials they disseminate as coming from a ‘foreign agent’.
The reporting forms for unregistered groups and individuals have not yet been published, but there are draft MoJ instructions available. Persons declared ‘foreign agents’ will have to indicate the details of their spending in the reports.
This means that someone paid by a foreign employer will be required to report extensive information, including receipts and other supporting documents, related to his or her personal expenses, and perhaps to keep separate household income and expense records for the government.
This blatant invasion of privacy raises serious issues. While I can agree that an organisation should report its spending, I refuse to understand why a private individual must disclose where they go, what they eat and what they buy in a store.
Another restriction for individuals declared ‘agents’ is a prohibition to hold public service positions with any government or municipal authorities.
And what about ‘individual-mass media-foreign agents’?
This wording is certainly insane. It is my guess that perhaps 18 months ago, when it was first introduced, the Russian authorities still felt somewhat uneasy about labelling individuals – rather than entities – foreign agents and added ‘mass media’ to the status so it might sound like some broadcasting organisation.
But the standards dropped low enough over the following year to remove any such concerns – or maybe someone in MoJ said, look, this entire concept is crazy, let us think of something less complicated…
But what is the difference between individuals who are simply ‘foreign agents’ and those who are ‘mass media-foreign agents’?
There are a few distinctions.
First, those declared ‘mass media-foreign agents’ are required to register a Russian legal entity within a month of being included in the registry. This entity is supposed to ‘organise the distribution of informational materials’ in Russia and will be subject to the same obligations as a ‘foreign agent’ NGO in terms of extensive reporting to MoJ, annual external audits, etc. In addition to this, the individual will be required to report on their activities once every six months and on their spending once every quarter! This is an incredibly cumbersome and totally bizarre concept. What type of a legal entity are they expected to set up – a commercial company, a non-profit? In practice, ‘individual-mass media-foreign agents’ create limited liability companies which are the easiest to register.
Ordinary ‘individual foreign agents’ do not have an obligation to create a legal entity.
There are also differences in terms of penalties for non-compliance.
‘Individual-mass media-foreign agents’ can be fined 10,000 rubles after the first incident such as failure to submit a report or to label a publication and 50,000 rubles for repeated noncompliance within a year. A third instance of noncompliance within one year can result in criminal prosecution with sanctions of up to two years in prison.
Sanctions for ordinary ‘individual foreign agents’ are different. First, they are expected to request being included in the ‘individual foreign agent’ registry voluntarily. If they do not make such a request and are entered in the registry involuntarily by MoJ, penalties may vary depending on the type of ‘individual agent’ status. Someone found to engage in ‘purposeful collection of information in the field of military, military-technical activities of the Russian Federation’ could immediately face up to five years in prison, while someone entered in the registry for their political activism will be fined 30,000 to 50,000 rubles and then, should he or she fail to comply with their ‘foreign agent’ reporting, e. g. miss a deadline, they can also face a prison term of up to five years.
Yet another important distinction is that an ‘individual foreign agent’ can – at least theoretically – request to be taken off the registry, while the status of ‘individual-mass media-foreign agent’ can only be lifted upon the authorities’ initiative.
Currently, the list of ‘individual-mass media-foreign agents’ includes five people. How and why were they listed?
As far as I understand, no official explanation of the reasons for their listing has been disclosed. Two of them had contributed to publications previously listed as ‘foreign agents’ – so this was probably the reason. Lev Ponomarev, according to press, was included in the registry for reposts from foreign media.
But it is important to understand that affiliation with a media outlet is not even necessary. As she was trying to appeal her status of ‘individual-mass media-foreign agent’ in the courtroom, Daria Apakhonchich learned that the ‘political activities’ causing her to be listed included a post about an authorised rally in support of the Set (Network) defendants, an invitation to an event in support of Yulia Tsvetkova, and running the ‘Feminists Explain’ YouTube channel and social media pages.
What other requirements are there for ‘individual-mass media-foreign agents’?
Just as other ‘foreign agents’ they must label their posts, but unlike other ‘agents’, they must use the exact language required by Roskomnadzor: ‘This message (material) is created and/or distributed by a foreign mass media outlet performing the functions of a foreign agent and/or a Russian legal entity performing the functions of a foreign agent’.
The letters must be twice the size of those in the post and immediately follow the post’s headline. Some social media do not allow to change the font size, so ‘individual-mass media-foreign agents’ use capslock.
In audio or video materials, this message must sound for at least 15 seconds at the beginning, with no background music, and must be shown on the video screen so that it takes up at least 20% of the screen area.
The requirements for ‘individual-media-agents’ to create a legal entity and file reports appear totally absurd. Why was it made so complicated?
Here is my hypothesis. The Russian legislators were told in 2019 to focus on individuals who were doing the same type of things as organisations labelled ‘foreign agents’ but acted in their personal capacity. The government wanted to get at those unaffiliated individuals as well.
The drafters tasked with putting this in legal terms may have struggled with placing a ‘foreign agent’ label on an individual and forcing him or her to disclose their personal expenses – so they decided to require such individuals to create a legal entity which would ostensibly report on its organisational – but actually on that private individual’s – activities. This produced the legal monster which was totally unviable from the start.
By the end of 2020, these concerns were discarded, and it was allowed to label individuals as ‘foreign agents’ just as well.
So what about the actual foreign mass media – ‘foreign agents’?
While I would question the phrase ‘actual foreign agents’, this law was originally directed against foreign media outlets, not necessarily those having a Russian-language version or distributed/broadcast in the Russian territory. Today, the registry includes 15 ‘mass media-foreign agents’ which are not individuals.