27 October 2020
This interview with Galina Arapova, director of the Media Rights Protection Centre, media lawyer, winner of the Moscow Helsinki Group Prize, is part of the NGO-Profi project. We here translate an extract.
Source: Moscow Helsinki Group [original source: АСИ]
You have been involved in human rights for 25 years. Did you have a background in the area?
No, I hadn’t thought about human rights activism. I had always enjoyed the more precise sciences and found them easy, and intended to become a mathematician after school, but I thought working with numbers my whole life would be boring so I chose jurisprudence as the most precise of the humanities where you can work with people and be useful to them. I enrolled in Voronezh State University thinking I would become a lawyer.
What was your first job?
After graduation, I worked for a year as a lawyer in a design bureau and was, in fact, engaged in corporate law. Simultaneously, I entered a postgraduate course at the Institute of World Economy and International Relations at the Russian Academy of Sciences. The work was rather monotonous and not burdensome, so I managed to study and even translated the Constitution into English, out of boredom.
Then I worked as a lawyer at an estate agent. I didn’t like it there at all, because the owner deceived the agents he hired. He squeezed all the juice out of them during the probationary period, and then refused them employment and sent them off without pay. As a lawyer, it was proposed that I cover up the whole matter. I refused, so I left literally a month later.
So you left work that didn’t make you feel useful and went to protect the media?
I was simply ready to try something different. An acquaintance told me that some Moscow organisation was looking for a regional lawyer for a contract – so in 1995 I started working for the Glasnost Defence Foundation. At that time, I did not know anything about freedom of speech or about the media. Like other law students in Russia I had not been taught media law.
I helped the Foundation monitor violations of the rights of journalists in the Central Black Earth Region and did consultations. Aleksei Kirillovich Simonov, president of the Foundation, was at the very roots of the defence of glasnost and freedom of speech in Russia. I probably would not have become a media lawyer if not for him. It’s a complex and dynamic topic, there are interesting people around you – the work turned out to be compelling for me. It was impossible not to believe in the importance of freedom of speech, even if the only thing you had used to read in the newspapers was the funny pages.
The Foundation was then developing a regional network of staff, but it soon became quite difficult to manage it from Moscow. Therefore, the idea arose to create independent organisations in different regions of Russia. So in 1996, the Glasnost Defence Foundation became one of the founders of the Media Rights Protection Centre, which I headed.
And it was a real start-up. Together with us, a dozen more similar organisations arose throughout the country; which, unfortunately, did not last long.
Why were you chosen? Was there a vote?
Formally, of course, there was. But we, employees of the new organisation, were few in number. The founders made a decision based on who was really ready to take it all on. Arapova’s a lawyer, let her do it! There was no one else – so I got stuck in.
What did the centre do in the early years? What issues did people bring to you?
At the very beginning, we did not conduct legal cases: the trust of journalists had to be earned. We monitored violations of the rights of journalists in our region, and all information flowed to the Glasnost Defence Foundation. We also consulted journalists and ran educational seminars, usually with experts from the Glasnost Defence Foundation, because they were more experienced.
Gradually they began to turn to us for help. My first trial was a defamation claim brought by the governor of Lipetsk region against Valery Miralevich, a Novye Izvestia correspondent. He was already a very respected journalist back then, and the fact that he invited me to handle his case meant a lot to me. Although we did not win, we did a great job, demonstrating the complete absurdity of the claims, and we became friends.
Did the Media Rights Protection Centre have a big team?
At first there were three of us: an accountant, a monitoring colleague and me. I was the only lawyer and I worked with my colleagues on all the cases in a nationwide monitoring effort; we focused on violations of the rights of journalists in the Central Black Earth region.
But gradually cases began to come to court. In the late 1990s, we worked on about ten a year. By the early 2000s, there were so many court cases that I could no longer cope with them on my own and new lawyers came to work at the Centre.
Is defamation the most common kind of lawsuit brought against journalists?
At that time, it was indeed the most common.
That is to say, a scenario where an honest journalist wrote something about the authorities, and the journalist was taken to court?
There were many different cases. Journalists made mistakes, and they make mistakes to this day. Sometimes they do not know how to record evidence correctly. Sometimes the source of their information lets them down. But there are also cases of inversion of responsibility, as you describe: a conscientious journalist has published important information about abuses carried out by a corrupt official, and the state authorities, rather than launching an investigation into the corrupt official, call the journalist to account. And then it is the journalist who has to fight back in court.
In the late 1990s and early 2000s, most of the cases were brought by the authorities. But since the mid-2000s, the number of lawsuits brought by entrepreneurs and commercial companies has grown significantly. Legislation has developed, and people have grown better informed about legal matters.
We conducted seminars for judges on Russian law regarding the media and on the practice of the European Court of Human Rights. This provoked a lively response: the judges applied the knowledge with understanding and enthusiasm. State officials who tried to whitewash their reputations by launching a lawsuit often did not get the result they had desired, because the practice of the European Court states that, if you are a public official, you should put up with criticism against you, because the public interest is always the priority.
As regards defamation cases, judicial practice has been quite progressive. We have won the vast majority of cases. And fewer lawsuits have been brought by officials.
One might assume that, in the early 2000s, on the contrary, state officials had influence over judges.
Surprisingly, this was not always the case. However, in some regions there were such problems. We had a large number of lawsuits over claims made by the governor of Kursk Region, Aleksandr Rutskoi, against local journalists. So many, in fact, that sometimes the journalists would hang up a sign on the door of the editorial office: “There’s no-one here. Everyone has gone to court.”
That’s where the judges demonstrated the miracle of ingenuity, when it is necessary to make a “Judgment of Solomon” and neither offend the governor, nor punish the journalist too much [Note 1].
One case in particular stands out from this galaxy of cases, and that is Rutskoi’s complaint against Viktor Chemodurov, a well-known regional journalist and special correspondent of the newspaper Rossiiskaya gazeta. Chemodurov got his hands on a copy of a document written by Rutskoi to the financial officials in the regional government. They had informed Rutskoi that a million dollars had disappeared from the budget. Rutskoi instructed them to write off the missing millions of roubles as mythical repairs. He literally told them, “What do I have to teach you? Write the money off as repairs for the ‘Veteran’ store, the store in Murynovka, and the House of Journalists.” [Note 2]
Chemodurov published a copy of Rutskoi’s document, commenting that a normal governor should have called an investigation and punished the guilty. A governor who gives such instructions is “abnormal,” he wrote. The court ruled that his use of the word “abnormal” was offensive [to Rutskoi], and fined the journalist 1,000 rubles. But for us it was a matter of principle. We took the case to the European Court of Human Rights and won it. It was a well-publicised case — nowadays, I think, the level of influence of officials over judges is significantly higher.
Have there been any changes in the rhetoric used by judges?
In 2005, a ruling on defamation adopted by the Plenum of the Supreme Court of the Russian Federation made a de facto reference to the need to apply the norms of international law and the case-law of the European Court of Human Rights when considering cases concerning freedom of speech. At long last there was an acknowledgement of the need to differentiate facts from opinions, and the decision contained many other findings that made it easier to defend individuals facing charges based on what they had said. That was exactly what we had been fighting for since the late 1990s. Before this decision was handed down, we had been forced to explain everything to the judges in simple terms, but they understood what we were saying and – in the majority of cases – felt confident enough to follow a progressive approach in practice, quite often citing the case-law of the European Court of Human Rights.
Starting in 2012-2013 or thereabouts, Russia’s relations with Europe started to go downhill, and we began to hear anti-Western sentiments. It was during this time that we started to hear judges saying, “Do you mean to say we haven’t left the Council of Europe already? Why on earth are you citing provisions of European law? We have our own Civil Code.” We were forced to start our legal dialogue again from scratch.
Do you have any special tactics that you follow when dealing with judges?
Our job is not to establish a personal relationship of some kind with judges, but to provide the most effective defence possible for journalists, bloggers and editorial teams, so that our legal arguments on freedom of speech are heard and taken into account by the court when it hands down its ruling. That’s why we always prepare our submissions to the court to the highest possible standard. Our job is to sound professional and convincing, even if the judge has never handled a case of this kind before, even if he is a sceptic, even if he has no fondness for journalists and bloggers. We write detailed and well-reasoned rejoinders to claims. In most cases the judges respect us for doing so, because they realise that we are professionals at work, and not simply waving a flag of protest.
Aside from the Media Rights Protection Centre, who else in Russia is defending journalists’ interests in court or tackling the problem at a systemic level? Who is fighting the fight alongside you?
Very few people, unfortunately. Back in 1996, centres like ours sprang up in Kazan, Rostov, Bryansk, Ekaterinburg, Novosibirsk and St Petersburg. But the problem was that they only remained in existence for a very short time, often because their employees were also working somewhere else at the same time. Combining the two turned out to be an unrealistic prospect.
As a result, after five years or so, all the regional organisations had vanished – except for us. Funding was also a perennial headache. The only ones remaining on this “scorched earth” were us and the Glasnost Defence Foundation, which is not quite as active as it used to be, but continues to monitor infringements of journalists’ rights as it has done for the past 30 years.
Our counterparts at Agora and Team 29 occasionally take on cases relating to freedom of speech – these often have links with extremism, official secrets and fake news, or in other words high-profile court proceedings. We provide assistance to any journalist who is prosecuted in connection with his or her professional activities, regardless of how well-known the editorial team is. We also work as first responders, checking complex material before it is published to determine whether it poses any legal risks, and we defend journalists before both the Russian courts and the European Court of Human Rights.
Our clients include major national publications such as Kommersant, Rossiiskaya gazeta and Novaya gazeta, as well as small regional newspapers, and even rural bloggers.
Are lawsuits against journalists different in Moscow compared to other areas of the country?
Defamation cases are about the same everywhere. But besides those, there are also lawsuits regarding image rights, privacy, and use of personal data, as well as violations of copyright, electoral legislation, and formalities such as age indications on various products.
You can’t write about suicide, you can’t write about drugs, and you can’t write about children who are victims of crimes. And these never-ending bans on different types of content that Roskomnadzor is now vigilantly monitoring give rise to an immense number of new risks and lawsuits against journalists and editors.
You have a better chance of winning in a regional court, where at least they listen to you. Some cases — such as those regarding blocking online publications and websites — are heard by only one judge in Moscow, who makes all rulings in favor of Roskomnadzor. This is the judge who made the decision to block Telegram.
In court, cases like this are often like lopsided games. The state has proclaimed that there is an active movement for information security, and judges see themselves as servants of the sovereign whose mission is to fight the dangerous Internet. Amendments have been made to the Criminal Code that consider committing a crime using the Internet to be an aggravating circumstance. So such circumstances include not just “a group of individuals” or “in a state of intoxication,” but also “online.”
It’s interesting that European countries also adopted laws aimed at combating extremism online and defending personal data. They came up with the “right to be forgotten” and even ill-fated legislation on fake news. But the devil’s in the details. In Europe, where they have an independent and impartial judicial system, any restriction on free speech is subject to careful judicial review. Here in Russia, unfortunately, we have trouble with that…
Are you able to influence this in any way?
We are realists. We understand that for change to happen we need comprehensive changes to national policy, but that’s not within the realm of what we can do. All we can do is continue doing our work well, protect those who disseminate information, educate people about the right to freedom of speech, and help journalists be stronger and more confident.
And then, later, there must be better legal education and better selection of judges. They must know international law and be able to apply it.
When did you yourself begin to be aware of the dynamics of oppression of the media and of journalists?
The picture has changed dramatically over the past ten to fifteen years. Bans have been introduced on reporting on specific topics, people can now be accused and found guilty of showing disrespect for the authorities, and for what can be called fake news. This climate of censorship is causing many journalists not just irritation, but alarm for their profession. Some are reacting by abandoning journalism in favour of stress-free work for press services – because, after all, everyone has a mortgage, family and children to care for. But some, on the contrary, are setting up independent media units and joining together in investigative journalism ventures, because staying silent is no longer an option for them.
The number of criminal cases brought against journalists is increasing. This is a deterrent to other journalists: it is better to keep silent than to become the accused in a criminal case. Until the case was brought against Ivan Safronov, Grigorii Pasko was the only journalist to have been accused of treason by this means. I know Grigorii as a very decent person; his case literally fell apart and he was acquitted the first time, but the second time he was convicted. When he posed the question “Why?” either to the prosecutor, or to the FSB officer who was handling the case, he was told: “It’s a deterrent, to discourage other journalists in future.”
But here’s a positive upside. Since people have given up expecting objective coverage of problems by the state media, now people are beginning to write themselves. This may be a village blogger who works as a gamekeeper but who writes on Odnoklassniki about illegal deforestation, and about his village. It’s true that such people are increasingly finding themselves in court. Let them make mistakes, even if sometimes they do not know best to express their views and if they know little about the legal risks they are running: they are doing something important and socially useful.
Moreover, more and more investigative journalism projects are appearing that do not try to compete with one another in the traditional way, but whose main aim is to defend the public interest. They publish materials jointly in order to make it harder for the authorities to counter them. This is a new level of Russian journalism of which we can all be proud.
What do you think it is that has made the Centre such a strong and resilient organisation for so many years?
If we have to make a choice — either to spend time and resources on analytical research in the area of freedom of speech, or to help three – or a dozen – individual journalists in court — we will choose the latter.
Of course, we too are in favour of everything good and against everything that’s bad in the country. But we simply saw the eyes of the journalists who had been summoned to court, who had been threatened, and we understand that talk about tens of new bad laws in the country along the lines of “What a nightmare! We Shall All Be Jailed!” will not help. We knew we had to go to court and to defend that particular journalist, to uphold their right to express their opinion and disseminate information, to help them again believe in the importance of their work as a journalist. And then we can draft research studies and reports.
As it has turned out over the years, this approach has made us a strong and in-demand organisation, because for almost 25 years we have been giving journalists precisely what they need.
Do donations that individuals make to the Centre play a major part in its operation? Could the Centre operate on them alone?
No, of course not. We can divide the donations into 2 groups; support for our work from representatives of the media and then money from people who simply care about free speech issues. This year we collected donations on “Planeta.ru” (a popular crowdfunding platform in Russia) to build a new mobile app which would teach people how to act online and share information safely. We launched the campaign at the start of March, just when the Pandemic came onto the scene, so people really didn’t have the means to support charities.
We didn’t stop this experiment though. It seemed to us people should feel ownership over the efforts to defend human rights. People don’t just read the books of Darya Dontsova or watch entertainment shows but focus on the real problems affecting society and help other people to solve these problems.
But the part of our budget – individual donations – really needs to be seen through a magnifying glass.
But the Centre’s separate and rather old programme is the subscriber service that can be used by media editorial offices. We don’t do all our work pro bono, and there is no reason why we should. They’ll consult us about advertising laws or the business side of their operations. This is to some extent outside the borders of our basic mission, not really related to the defence of free speech, so we are not obliged to use our own resources to help editorial boards with these issues. We do anyway, because it’s good to understand these things.
When a media outlet’s editorial board wants to pay us for our work, we’ll happily take it. We then use it to help journalists covering difficult stories, but who can’t afford a professional lawyer. This part of our income is bigger than the crowdfunding, but it’s not enough to run our organisation.
Do grants provide the rest of your income?
Grants, yes, just like most human rights organisations in the world. Grants supporting the NGO’s work come from charitable sources, sources the government considers to be getting in their way. It doesn’t mean we are dependent, however. It’s generally assumed we act as some sort of agent for those giving us money. There is a crude assumption of “he who pays the piper calls the tune”, but in our line of work, on the contrary, grants are a sign of independence.
Being in the human rights field and depending financially on the government is simply, by definition, impossible. You can’t give an objective assessment of events in the country.
Therefore, if you have many diversified sources of income, you will be a freer and more independent organisation. The more sponsors you have, the less likely it is any single sponsor will have influence over you. In the past 24 years of our work we have never had a donor dictate terms to us.
How much pressure has the Centre experienced since being designated as a foreign agent?
It happened five years ago – again, the state policy towards civil society changed and Russian human rights groups were designated as foreign agents. An additional reporting burden was placed on us despite our absolute transparency. Five years ago it was of course stressful for everyone. Now, together with 60 other human rights organisations, we await the decision of the European Court of Human Rights.
We were the only organisation that the regional governor stood up for. Aleksei Gordeev openly stated that he was ready to testify in our defence in court. His position may have deterred local security officials and pseudo-activists from taking steps against us such as those we observe in relation to Memorial. Journalists and editorial offices from all over the country then began to come out in support of us. They put up banners about us on their sites and even made a special site within a few days about our inclusion on the foreign agents’ register. They perceived the attack on us as a threat to themselves. Our last seminar for judges was supposed to take place in Chelyabinsk, at the invitation of the regional court, but they got scared and cancelled it after we were designated as a foreign agent. It so happens that, you work, you create a reputation for yourself, and then they put a label on you. This label takes time away from us, we have to write four times as many reports, despite the fact that our documentation has always been to the highest standard and available to the authorities (that’s why human rights organisations often cannot understand when people speak of an even higher level of kind of transparency).
How do you personally feel having worked for 24 years in human rights advocacy?
In 20 years the world has changed a lot. Each area of human rights has its own dynamic. As far as elections are concerned everything is changing negatively. In the fight against domestic violence, everything is changing much more slowly. It seems to me that there needs to be a very persistent legal force to change the situation even slightly. Everything is changing here for us too – and in a dynamic way. Over the past 10-15 years, we managed to process all the appeals that came to us, and in addition to that – to create families and give birth to children. We did a lot before, but there was no need to tear our souls out like we now do. I haven’t been on a full vacation for five years. This year I took some time-out for a week to get enough sleep. Perhaps I am a gloomy workaholic who likes his job, but a reasonable balance must be maintained, otherwise what kind of emotional uplift we will talk about.
Why a gloomy workaholic?
That’s just how it is. We are trying to adapt to new requests and ever-increasing volumes of work, improve the work of our legal service, look for new formats to share useful information and legal advice in order to help everyone in time. We are trying to support all our employees who are on the verge of burnout, and to prevent this from happening. Still, the worst that can happen to a human rights advocate is that their sense of responsibility for everything in the world does not allow them to forget about work, leave for a few weeks and switch off their phone.
Note 1: “The Judgment of Solomon is a story from the Hebrew Bible in which King Solomon of Israel ruled between two women both claiming to be the mother of a child. Solomon revealed their true feelings and relationship to the child by suggesting to cut the baby in two, with each woman to receive half. With this strategy, he was able to discern the non-mother as the woman who entirely approved of this proposal, while the actual mother begged that the sword might be sheathed and the child committed to the care of her rival. Some consider this approach to justice an archetypal example of an impartial judge displaying wisdom in making a ruling.” Wikipedia
Note 2: For more information about this case, see here.
Translated by Anna Bowles, Elizabeth Teague, Joanne Reynolds, Nina dePalma, Matthew Quigley, Fergus Wright and Anastasia Kovalevskaya