Human Rights Lawyers

28 March 2023

Galina Arapova, director of the Mass Media Defence Centre and a member of the Moscow Helsinki Group member

Source: Moscow Helsinki Group [original source: Spektr]

A year has passed since the regime in Russia adopted a law on “fake news” with regard to the Russian military’s actions in Ukraine. Two articles were added to the Russian Criminal Code: on dissemination of inaccurate information about the Russian armed forces (Article 207.3 of the Russian Criminal Code); and on discrediting the Russian armed forces (Article 280.3 of the Russian Criminal Code). 

This is how the regime responded to the hail of criticism, antiwar actions, and statements, as well as to the dissemination of information about the war in Ukraine that did not come from official Russian sources. The maximum punishment under the new articles is 15 years’ imprisonment.

Initially, most prosecuted for “military fake news” were journalists and political activists. In just one year, nearly 200 people became defendants in such cases. The latest verdicts were issued in early March 2023 (Kemerovo journalist Andrei Novashov was sentenced to eight years’ compulsory work; Dmitry Ivanov, co-founder of the Telegram channel “Protest MGU [Moscow State University],” to eight and a half years in a penal colony).

Does any professional, independent journalism remain in Russia, and in what conditions does it exist? Is there still a dialogue between Russian independent media and their audience? What mission are they fulfilling, and what is the Russian regime trying to achieve? Speaking about this in an interview for Spektr is media lawyer Galina Arapova, director of the Mass Media Defence Centre.

The beginning of this month marked a year since the passage of draconian laws affecting the press’s work in Russia. As of spring 2023, are there any independent media left in the country? If so, what opportunities and rights do they have left?

This is a very complicated question because Russian media remain just that as long as they disseminate information in the Russian language for a Russian audience. The editorial office’s location isn’t that important. Meduza, for example, is that Russian media or Latvian? In my opinion, Russian, because they’re speaking to their audience in Russian and writing about Russia.

From the legal standpoint, media are considered as such only if they are registered with Roskomnadzor [Federal Supervision Agency for Information Technologies and Communications]. But we know that over the last five to seven years, many editorial offices have refused to register with Roskomnadzor. Precisely because the rights that status gives were becoming increasingly ephemeral and exercising them was difficult.

Under the second article of the law on the media, editor and journalist status were needed primarily to obtain accreditation. And lately in order to report on rallies, demonstrations, and other mass undertakings. Plus, in order to get answers to inquiries from state bodies not within 30 days, like ordinary citizens, but within seven, as established for registered media editorial offices.

If we look at all these rights, then in the last year or two implementing them has become virtually impossible in practice. There have been virtually no rallies for journalists to observe. Fifteen journalists in vests that say “Press” aren’t going to go to solitary pickets in order to photograph and film a single unfortunate picketer. In recent years, editorial offices the regime didn’t like have been refused accreditation. In addition, journalists began going to official conferences much less. Those editorial offices deemed to be foreign agents no longer even tried to obtain accreditation.

Directing inquiries to regime organs also ceased to be an effective instrument for gaining access to information. Therefore, the pluses from registered media status became fewer and fewer and the minuses more and more.

In the end, the whole structure of media communities changed. There are lots of Russian independent media. They now operate primarily from abroad. Many of them have been deemed foreign agents, nonetheless they continue to speak to and maintain contact with their audience.

Have professional media survived today in Russia nevertheless?

If you look at how many independent editorial offices remain directly in Russia, then there are very few because almost all of them have been blocked and criminal cases have been opened against journalists. When you’re talking about five or ten years’ incarceration, everyone faces a serious moral and professional choice.

Therefore, many editorial offices have stated that they won’t write on certain topics, that is, they are applying self-censorship. While some have simply been forced to relocate their journalists and continue to work in the format they consider professional and in line with their journalistic mission.

It’s worth pointing out that in the last year many new independent media projects have appeared—Verstka, Cherta, and Novaya vkladka—and Liudi Baikala has been very active, as have many others. As pressure from the state has increased, journalists have sought other options for continuing to work and have been quite creative and responsible. In my opinion, independent media are now in their strongest phase of the last decade.

Over the past year, which has your centre assisted more – media outlets that have their editorial offices in Russia or those that have them stationed abroad?

Paradoxically, both. No one has cancelled the classic problems connected with distribution of information, with copyright, with access to information. Legislation on advertising is actively changing, and we also continue to advise on these issues. But you understand that problems with advertising concern only those editors who are inside the country, but laws such as those on fake news, discrediting of the armed forces and so on are equally relevant for everyone who distributes information in Russian and who writes on these topics on both sides of the border, because those who have left remain under Russian jurisdiction.

We help a lot of journalists who were forced to relocate for work to other countries because there are risks there, they are different but they have them too. Criminal cases are mainly brought against them.

There are still a lot of questions related to the safety of journalists’ work. We are dealing with all these issues. Blocking is also an issue for us, and last year it was simple the favourite tool for restricting dissemination of information. And let us not forget the issue of foreign agents. Every Friday is just like a habitual blow. Who will be added to the list next Friday? Those who left, or those who stayed? It is totally unpredictable. We give quite a lot of consultations in this area, handling about a hundred cases, defending these people.

What does the court practice of your centre’s staff look like? Can you say that the judges are told from somewhere above what the minimum penalty is when imposing punishments on journalists?

I think the practice has changed, except in copyright cases. Everything that concerns journalism about society and politics or cases related to “war fake news,” discrediting the army or foreign agents is almost one hundred percent predictable. That is, as a rule, cases involving journalists are considered by the courts with a view, so to speak, to the special task of protecting Russia’s information security from the “evil influence of the West,” the Internet and all sorts of other kinds of liberty. So, very unfortunately, journalists as a professional group are finding it very difficult to defend their rights.

Our Centre has been operating for 20 years. In the first 15 years or so, we won more than 97 per cent of cases, for instance, concerning defamation. That is, our statistics directly showed that you can actually win a case on behalf of a journalist. Judges heard arguments related to freedom of expression and the right to express an opinion. Related to the fact that, for example, a value judgment, unlike a statement of fact, cannot be challenged in court, that it is always subjective and cannot be refuted. There are few such cases now. No one is concerned about defamation lawsuits, everyone has rushed into some other sphere. The percentage of cases in which journalists go to court and have a chance to win has changed radically. Yet we still go to court to defend media workers because the right to freedom of expression needs defending.

Don’t you get the feeling that this work is entirely futile in Russia?

Even if you lose, that’s important too. It’s not just the result that is important, but also the proceedings themselves. It is necessary to document everything. In the last resort, there is still the possibility of taking all the cases that have arisen after 16 September 2022 (since that date, the Russian Federation is no longer a member of the Council of Europe – Spectr) to the UN Human Rights Committee. To take the appeal to the international level, if there is no hope of getting a fair decision in Russian courts.

We will apply to the European Court of Human Rights in all cases concerning violations and restrictions that occurred before 16 September 2022. We are doing this even now because there is still this window of opportunity. There is still some time – a year and a half – until it closes, when all the instances at the national level will have been exhausted.

We understand that there is practically zero chance of winning in Russian courts. Practice shows that the courts are one hundred percent on the side of Roskomnadzor and the Prosecutor General’s Office. It is not legal arguments, but arguments of political expediency, that work now. I don’t know what the judges are guided by, but clearly not law. Nevertheless, we will still appeal, so that the situation can be documented, so that journalists can state their position and then appeal at the international level, because we still have a long life ahead of us.

Over the past year, how many times did your Centre have to help the media or journalists after they were accused of violating new laws on fake news and discrediting the Russian armed forces?

I won’t even talk about the amount of such cases. This year we are probably working at 200 kilometres per hour. Journalists are now, as they say, in the epicentre of these events. We can all see that the media community has divided, so to speak, between those in the country and those who have to work from abroad.

According to your Centre, how many different Russian media outlets have been blocked in the last year?

About 250 outlets. We made this count together with RoskomSvoboda [a civil society group] who keep track of all blocked sites, but of those there are about 250 that are media outlets. This includes almost all independent Russian media and many media projects that were not registered as media outlets.

The work of journalists in this situation has of course become very difficult, but they still continue to work. Forced to move to other countries and working from abroad, they of course continue to support independent journalism. I would venture to say that it has become more united over the past year. Unnecessary “friction” inherent among competitors has gone, because the rivalry for advertising revenues has disappeared along with the revenues. When a site is blocked, what advertising can there be? Accordingly, the media are organising their work differently, and of course, they’ve rallied together.

Here we come to the question of the mission to which professional media in Russia and beyond adhere.

It seems to me that they are doing their best to continue a dialogue with their audience, with Russian citizens who, because of the very high levels of propaganda and the blocking of most of the major independent media outlets, have been left in a unipolar world. They are in a situation where all sources of information are more or less like television hosts who, on different channels, all say the same thing. Only the voices are different.

Perhaps now the only hope for independent media is to maintain a diverse, pluralistic flow of information, one that really is based on a range of different sources, and not just on the official position of the Defence Ministry and the presidential administration. I think that the media understand their mission and do, as I see it, the best they can, despite the enormous risks.

Let’s not forget that the majority of journalists working with the Russian audience are in Russia. Some of them subject themselves to quite serious self-censorship, because they cannot talk about many things otherwise. Some of them, of course, adapt to the current situation. They change how they work accordingly, choosing a model of behaviour that seems safe to them. At this time I can’t reproach them for this, because the situation is truly unprecedented.

In the end, one can always give up on the profession altogether when it is in such a state, but on the whole, journalists are now doing an absolutely colossal job, in terms of the volume and complexity of work, to preserve independent journalism. They are trying to keep a dialogue with the audience despite very serious efforts by the authorities to close it down.

Speaking of audiences. Does the public need this dialogue today?

To be honest, this is probably not really a question for me as a media lawyer. I can only give my opinion as a consumer of information. It seems to me that society is in a state of major stress right now. I’m not even sure that serious research on audience demand would be in any sense objective. People, it seems to me, will avoid talk of this kind because the state sends signals to society that say there are topics about which it is better to be silent. Society sees and hears these signals, especially in a situation where there are criminal prosecutions and a huge number of arrests at protest events. They are not massive, but they are continuing. According to OVD-Info, there is practically not a single day without anyone being detained.

In such an atmosphere, the general public are unlikely to answer honestly the question about what kind of information it wants, or how media outlets should be organised. Maybe people will say, ‘We want to hide from all this, we don’t want anything, leave us alone.’ I don’t rule out that any measurement of what the public want now in terms of media will not be biased.

Maybe then journalists really should think about changing careers on a mass scale?

Independent media can see their audience is growing. You can look at the quantitative indicators. The audience of Telegram channels and YouTube projects is growing. People in difficult situations and living in Russia continue to support these media through crowdfunding.

They may not answer the question asked by a public opinion survey like the Levada Centre, let alone [the more official] VTsIOM. But what they read, what they watch, and to what they donate money, speak volumes. They need this information. They need to understand that there is something other than what is being said on TV.

The media is constantly trying to understand how effective their efforts are, how much the public hears them, how they can reach them. Not to reach them even, but just not to lose contact with them. This is very difficult, especially since the state is very active in trying to break all contacts.

That is why they designate journalists as foreign agents, declare media outlets to be undesirable organizations, and launch criminal cases against journalists, because fear paralyzes. They try to induce fear in everyone – in media workers, media managers, the public, and those who help and support Russian journalists. Everything, so it seems, will depend on how much people are able to overcome this fear. So far I see that it is surmountable. At least on the part of the media community. Its participants clearly understand the risks but keep working. This is a credit to them.

Besides fear, the state has such weapons as the new legislative restrictions imposed on mass media which we have already spoken about. Which of them seem the least compliant with the requirements of the law or with the Russian Constitution?

The Constitution is the basic law, and all legislation must comply with it, so if we are talking about compliance with the law, I would put the problem differently. The fact is that legislation takes the form of written legal norms. Whether or not these norms comply with the Constitution is a matter of interpretation by the Constitutional Court. Only it can say whether a norm complies with the Constitution or not.

The basic law of the Russian Federation sets rather categorical limits: censorship is forbidden, a person has the right to freedom of expression, to disseminate information, and so on. Next, we see laws which seem to us, as practising lawyers, to contradict the Constitution in many ways. However parliament has adopted these laws about fake news and discrediting the armed forces. Law enforcement agencies, courts, government agencies say: there is a law, and it says that you can’t criticize. If you can’t, then that’s because it is the letter of the law, so it is lawful. This is how it works in practice.

So how does this contradiction in the field of law come about?

Lawyers understand the difference between the law and legislation. Legislation is what is written on paper, while law is the higher standard of how all legal norms should work in the country. What’s written in legislation may not actually correspond to the law. Recall, for example, that over the last 100 years various countries have passed laws that allowed people to be sent to concentration camps. These were not consistent with the spirit of the law, the value of human life, dignity, and so on. So I wouldn’t say that in this situation everything we have is unlawful, but there’s a lot that is not consistent with the principles of law. It is obvious that the Constitution forbids censorship, but we see that it exists.

Is there de-facto censorship in Russia, though de-jure it is prohibited?

I think there is hardly anyone who would say otherwise, not even a media lawyer. I think that almost everyone with a law degree understands this. After all, censorship can also be justified with beautiful words – the need to protect national security or personal data. For example, when data about officials or their income is removed from the public domain.

Remember, when information about the property owned by the sons of Prosecutor General Yury Chaika was removed from the public register, replacing their names with a random set of symbols? It was all justified by the need to protect personal data. It was a clear reaction to the anti-corruption investigation into them, so you can justify absolutely anything. Those who impose these restrictions do everything on the grounds of needing to combat foreign influence, protect national security and sovereignty. Further on, as they say, the devil is in the details, but the Constitutional Court has not dealt with these details yet.

If the Constitutional Court gets to considering these laws, can we expect it to remember the ban on censorship?

To be honest, I don’t hold out much hope. We remember that the Constitutional Court recently expressed quite controversial positions on such restrictions. I am afraid that our society does not have a “safety cushion” in the form of an independent judicial system. Even the Constitutional Court in our current situation has become an institution which won’t say that a set of censorship restrictions of this kind isn’t normal and consistent with the need to protect the constitutional order or state security.

Translated by Marian Schwartz and Simon Cosgrove