17 February 2021
Radio Liberty interviews Galina Arapova, director and chief lawyer of the Media Rights Centre, laureate of the Moscow Helsinki Group human rights award
On February 17, the Federation Council approved a law on new fines for “foreign agents” and those who disseminate information about them and the content they create, in the media or on social networks. Galina Arapova, director and chief lawyer at the Media Rights Centre, winner of the Moscow Helsinki Group Prize, talks about all the nuances of the new law, which will come into force after it is signed by Vladimir Putin; about whether ordinary Internet users now need to label their posts if they contain links to content by “agents”, and what problems the law hides within itself thanks to its numerous inconsistencies and bad legislative language.
From the first version of the bill it followed that with its adoption it would be possible to fine someone for reposting media articles – be they a foreign agent or even simple internet users, and in the end it turned out that not only ordinary people but also other media outlets were obliged to flag them up. Despite this, many Russian publications already accompany references to the media with the wording about foreign agents that was approved by order of Roskomnadzor, while others are still improvising.
Radio Liberty: The text of this bill changed several times as it passed through the State Duma. When it is signed by the President of Russia, who will be fined, and for what? For example, will ordinary Internet users be able to repost Radio Liberty articles without indicating that they were created by a “foreign agent”?
Galina Arapova: The paradox is that the fact that the media are “foreign agents” has been forgotten. There is no responsibility for reposting an article from, for example, Radio Liberty, without a note saying that it was created by a media outlet that is a “foreign agent”. Under this law, an ordinary citizen or any other media outlet that links or quotes Radio Liberty cannot be dragged in. The law deals with only three categories of “foreign agents”, whose materials must always be flagged up when reprinting: these are non-profit organizations, public associations without the formation of a legal entity, and individuals. In fact, they were equated with extremist organizations. Only the “foreign agent” media themselves are obliged to put this note on their materials.
Perhaps this is an oversight, and they will correct this “omission”. In any case, at this stage, an ordinary citizen doesn’t have to flag it up anywhere at all, neither when he mentions Radio Liberty, nor when he mentions human rights organisations which are included in the register of “foreign agents”, nor when he mentions his friend who is included on the register of individuals who are “foreign agents”. So far only the media have been obliged to do this, in relation to the dissemination of information about these foreign agents in the media and on their social networks – that is, on the social networks of registered media. In this case, yes, there should be a note. But an ordinary citizen cannot be held accountable in such a situation – well, unless, for example, he moderates a public forum on the social network of some media registered in Russia.
These are those “individuals” who remained within the law and whose responsibility for the lack of flagging is addressed within it?
If you stretch the point, yes, precisely because responsibility there comes for distribution on social networking sites, if this social network distributes the publications of that particular registered media company; that is we can talk about the official public forums of newspapers, online media, TV companies, etc. etc.
Another scenario is that an individual works in that media outlet and his job is to administer this public forum. In that case, yes: he can be dragged in. But I can tell you that the media workers who administer their public forums have never been prosecuted for the dissemination of information on the social networks of their employer, the editorial office of the media company. Only the editorial office itself or an official – an editor – have been involved. And journalists, employees, media brand managers have not, so far. Hypothetically this is possible because liability in the Code of Administrative Offences is possible for three different subjects: for an individual, for an official and for a legal entity. That is, individual is hypothetically included there, but there is no such practice of involving individuals yet.
Can we say that the new law exhaustively describes all possible situations where the status of a ‘foreign agent’ is or is not indicated?
No, it doesn’t, there are holes, though honestly, I don’t want to suggest where these holes are and where to patch them up. Let them think for themselves. There are many holes, and these holes, in fact, show to a great extent how the bill was prepared, that it was prepared rapidly, that it was politicized, that it was written in a poor-quality legislative language. All of this is in fact about our law-making, the work of the State Duma and the quality of its laws.
Yesterday we discovered another ‘snag’ in this bill, which is very unpleasant, by the way. They were apparently in such a hurry to pass it that in one of the articles they wrote that physical persons, individuals, employees of non-profit organizations – ‘foreign agents’ – must accompany all their publications and appeals to government agencies with this note that they are employees of an NGO – a ‘foreign agent’. In the law about non-profit organizations, they got rid of this obligation, but liability, that is, a fine for failing to indicate, remained in the Code of Administrative Offenses. That is, it seems that they have forgotten to remove these three words from the Code of Administrative Offenses by the third reading. And now it is not clear what will happen.
That is, if I am a journalist – a ‘foreign agent’ – and I post Facebook that my cat has given birth to kittens, should I also include a note?
No, here we are talking about employees of non-profit organizations – ‘foreign agents’. That is, for example, if my employee writes that her cat has given birth, she should write that she works for an NGO – a ‘foreign agent’. There is a clause stating that this only concerns publications ‘in connection with carrying out political activities’. But since our concept of political activity is so broad that, for example, shaping public opinion and influencing public opinion is also a political activity, that if they write, I don’t know …
‘Cats are better than dogs.’
Yes, ‘cats are better than dogs’, or ‘believe in global warming’, or something else – officially, this is a political activity. There are hundreds of non-profit organizations – ‘foreign agents’ – and their employees can now be fined. A fine of 5,000 roubles or a warning.
Who is authorized to draw up protocols for the absence of a note pertaining to a foreign agent? Let’s say I am a social media marketing specialist and I publish information about a human rights organization recognized as a ‘foreign agent’ without including a note that it is a ‘foreign agent’. Who will come to me, who will fine me? If I am going too fast while driving a car, I will receive a fine from a traffic enforcement camera, but what will happen in this case?
In this case, the protocol is drawn up by Roskomnadzor. As a rule, Roskomnadzor’s focus is still the media outlet’s editorial office and the editor-in-chief, but if they really want to, they can, of course, take a closer look at the SMM specialist. In this situation, the fine will be minimal: 2,000 roubles. This is Roskomnadzor’s protocol, which is then submitted to the magistrate for consideration, and the magistrate makes a decision as to whether they are guilty or innocent, whether there is a violation or not, and the fine amount to impose in this situation.
Can’t criminal rather than administrative liability be applied to violators of this law? For example, in the case of repeated violations?
No, in this situation there is no criminal liability for repeated violation of the law on the absence of a ‘foreign agent’ notification.
What does ‘distribution’ mean? Is there a difference between putting a hyperlink to some kind of resource, which is recognised as a ‘foreign agent’, and not putting the link?
Not yet in terms of judicial practice. That’s how we interpret this law. Or rather, various laws, because our responsibilities are established in the Code of Administrative Offences, and the requirement to print this label is established in Article 4 of the Law on Mass Media. So, now, we’re talking about media-foreign agents and individual-foreign agents, and NGO-foreign agents.
The requirement to include the label is firstly placed on the ‘foreign agents’ themselves. Yes, they are required to use this label, and if they don’t, then there are huge fines, hundreds of thousand of roubles, and there could be problems of a much more serious nature, if, for example, this concerns a NGO-foreign agent or foreign media-foreign agent. If we’re just talking about an individual, so, for example, about a person who runs an editorial office, well, in that case, they’re only taking a risk if Roskomnadzor really wants to put pressure on a particular journalist, for example, to refuse to let them work for this particular publication. Or, if the goal is to collect more income for the federal budget through fines, then they will target not only legal entities and editors but also individuals. In that situation, to avoid liability, it will suffice to mention in any way you like that you are a writing about an NGO-foreign agent or individual-foreign agent (there’s not a single unregistered civil society group which has been recognised as a ‘foreign agent’ yet). If there is a hyperlink to a ‘foreign agents’ website, for example, but without mentioning the name of the organisation, then, according to current judicial practice, there’s no need for any additional labelling. That is, the label is required alongside the name.
Are journalists already contacting you with requests for consultations about the new laws, which stipulate the rules for marking ‘foreign agent’ materials and in general how to relate to them? Which questions come up most?
Yes, of course, they’re in touch. You know, it’s like Groundhog Day, because we discuss all the formal requirements relating to labels, how to print them, where to print them, how each label needs to look, whether you can print it just once or if you need to print it each time you mention the name of the organisation. The problem is that the law is written so ambiguously, extremely vaguely, that it is not always clear what the legislator in fact wants. They say, “must be accompanied by a label”. What kind of label? How should it be printed? With foreign media-foreign agents, they do it thus: Roskomnadzor created a special order, in which it specifically said that there should be this kind of label, in this form, 24 words should appear immediately after the headline. This label should be in a typescript twice as large as the text itself, and the letters should highlighted in a contrasting colour. Of course, for foreign media-foreign agents, this completely ruins the visual design of the publication, but it is precisely for this reason that it’s been done this way, so that the reader comes along, sees this awful label, turns and walks away without reading. The goal is to scare and alienate readers from this type of content, it’s sort of a form of censorship.
We regularly have to discuss technical issues with journalists in connection with adding a notification. A pop-up notice, for example – is that allowed or not? Does the notice have to be immediately visible in the headline? If, for example, the name of the organisation is mentioned in the headline, where do you put the notice? Should you put it under the headline, or can you indicate it with an asterisk at the end of the article? Our approach is that we interpret the notice as a gentle warning to the reader of who the provisory author or copyright holder of the content is, or which organisation it concerns. In that situation you need to make sure the notice is clearly visible, appearing after the first mention of the organisation, so that Roskomnadzor can’t accuse you of hiding the notice somewhere inconspicuous. Or for example, if the text is a long read containing many sections between which you navigate using hyperlinks, in which case, for example, I might not read the first three section and can just go straight to the fifth, for example. In this situation it makes sense to feature a notice in each section. Or, for example, if the content consists of text and video, then the notice needs to feature in both the text and the video. What if I don’t read the text, but click on the video? That means we have to comply with the legislation relating to this notice so as not to not give them yet another chance to fine an outlet 40-50,000 roubles over something so trivial.
The law on “foreign agents”, which came into effect in 2012 and has since been expanded several times, requires that non-profit organisations that receive funding from abroad and which the Russian authorities consider to be engaged in political activities to report their work and also declare their status as included on the list of “foreign agents”. Radio Svoboda, TV channel Current Time and other projects belonging to the Radio Liberty/Radio Free Europe media corporation were included on the list of “foreign agent” media in 2017. Before new rules developed by Roskomnadzor for marking “foreign agent” content came into force at the end of last year, RFE/RL complied with the agency’s requirements.
According to current information, Roskomnadzor intends to submit 260 incidences in court of RFE/RL articles not fulfilling requirements for labelling its content. This could incur a total fine of up to 75 million roubles. In recent weeks, a court of first instance have already handed the corporation fines totalling more than 19 million roubles. These rulings are being appealed in accordance with legally established procedure – RFE/RL believes they violate citizens’ right of free access to information. On Wednesday, news agency Interfax reported with reference to Roskomnadzor’s press service that if RFE/RL refuses to label its content as required, this could result in a “multiple increase in fines” and “blocking of the corporation’s output in the Russian Federation”.