Mikhail Fedotov: “If the State Duma can pass any law it likes, let it abolish the universal law of gravity.”

19 April 2022

Mikhail Fedotov in conversation with Petr Godlevsky

Source: Moscow Helsinki Group [original source: Rosbalt

Mikhail Fedotov is secretary of the Union of Journalists of Russia, former Minister of Press and Information of the Russian Federation, former head of the Presidential Council for the Development of Civil Society and Human Rights (HRC) and one of the authors of the first press law adopted in the USSR in 1990.  He spoke live on air in a Rosbalt podcast “Turn up the sound”  with his assessment of the restrictions that have been imposed on Russian media since 24 February.

– As the tragic events unfolded in Ukraine, Russian non- governmental media came under serious pressure. It all began literally on 24 February, when Roskomnadzor (Federal Service for Supervision of Communications, Information Technology and Mass Media) informed media that when preparing publications about the special operation, they should “use information and data obtained by them exclusively from official Russian sources.” Many experts and journalists expressed the opinion that this actually means the introduction of censorship. Do you agree with them? 

– Of course it’s not censorship. What is censorship? It is defined in Article 3 of the law on mass media. It clearly states that it has two aspects. The first is the requirement for approval in advance of materials and publications. Under this definition, Roskomnadzor has no requirements for publications to receive permission before they appear in the newspaper or on TV.

Censorship of the second type is the imposition of a ban on the dissemination of this or that information. There is no such outright ban here either. However, there is another requirement here – to restrict your search for information exclusively to official sources. This is not in accordance with the law, under which there is no such restriction.”

We have two special laws that were adopted twenty years ago, the Federal Law “On Martial Law” and the Federal Law “On the State of Emergency”. They allow for the possibility under the conditions of a state of emergency or of martial law for the introduction of censorship, suspension of the activities of the media, and controlling the work of printing houses, radio stations, etc. These measures are quite possible, but only if introduced by law. If we now had a state of martial law or a state of emergency, everything would be in strict compliance with these laws. A presidential decree introducing, for example, martial law might introduce specific measures to restrict the freedom of the media.

This is also in accordance with our Constitution, which provides for such restrictions in a state of emergency or martial law. If the state acts in accordance with these two laws, then there are no problems with restricting freedom of the media. These restrictions become absolutely natural, legitimate and understandable.

It is important that in the case of the introduction of such limitations, this would apply within a defined territory and within a defined period. After martial law is lifted, for example, these measures would also end.

In my opinion, this makes a lot of sense. This fits perfectly into the proposal that I formulated for myself on the basis of an important historical event. The law ‘On the Press and Other Media’ was adopted on 12th June,1990. This day is very significant in Russian history. Every year on 12th June , we celebrate a day that was originally designated the Day of State Sovereignty of the Russian Federation, and more recently Russia Day.

This was the way history decided, that on the same day, two historic documents were adopted in the Moscow Kremlin: the ‘Declaration on the State Sovereignty of the Russian Federation’ and the USSR Law ‘On the Press and Other Mass Media’.

History has made it clear that Russia’s democratic legal statehood, born in 1990, is closely connected with freedom of the mass media, freedom of the press. If the freedom of the press is affected, then Russian statehood is also affected. If damage is done to Russian statehood, then freedom of the media is also damaged .

In my opinion, the two federal laws about the state of emergency and martial law very clearly draw this line. If things are difficult for the state, then the freedom of the mass media can be limited.

— To date, neither a state of emergency nor a state of martial law has been introduced in Russia in any region. At the same time, on 26 February, Roskomnadzor officially demanded the removal of materials in various media that incorrectly, from the official point of view, covered the events in Ukraine. As it appears from the letter, it is unacceptable to use other terms to describe a special military operation. In fact, a ban on certain words in the press was introduced. How can this be assessed from a legal point of view?

— First of all, we have had a ban on certain words for a long time. Like cells harmful to the body, it has the ability to multiply and penetrate into other parts of the body. It began with the fact that it was impossible to name NGOs that were recognised as extremist and whose activities were banned without labelling.

Even then it was clear that the prohibition of words is meaningless. If it is impossible to say without labelling that the members of such and such a party have gathered somewhere, then, for example, we can say that supporters of Eduard Limonov have gathered. The meaning will be the same, and the audience will understand what it is about. Nevertheless, it was impossible to name this organisation without labelling. What to do in such a situation? Prohibit the use of the surname of Limonov without labelling? Then how to sell lemons in a grocery store? (the surname Limonov translates as the genitive plural of “lemons” in Russian – translator’s note). How to write: “The price of lemons (the organisation is banned in the Russian Federation)”? Funny.

Of course, this idea of labelling, banning words, unfortunately, is not new. It is certainly meaningless. From the fact that you write ‘Roskomnadzor’ instead of several words, what will change? The Federal Service for Supervision of Communications Information Technology and Mass Media pretends that it performs its functions, and the public pretends that it agrees with this. Nothing good comes from the fact that we are deceiving each other.

Secondly: there is a ban on using the names of prohibited organisations or foreign agents without proper labelling in legislation. There is no prohibition on the use of certain words that we are talking about in the legislation. This is a law enforcement initiative of a body that is not endowed with the right of legislative initiative. Roskomnadzor cannot introduce new legislative norms and substitute itself for the Federal Assembly of the Russian Federation

— How then are all these Roskomnadzor initiatives coming about? 

— I understand why they’re doing it. They are proceeding on the basis that we have a special situation but the law makes no provision for it. There’s a law on an emergency situation and one on martial law. They have to operate in keeping with legislation rather than thinking things up for themselves. The same applies to the demand that journalists use only official Russian sources. Where did they get that from? From what provision of the law does this follow?

I understand when, for example, a counter-terrorist operation is underway. The procedure for information gathering within the territory affected is determined by the operation’s leader. That’s enshrined in law. In our situation, no counter-terrorist operation has been declared and Roskomnadzor is not the leader of it. I am forever urging the same thing: everything must be done in strict compliance with the law. Unfortunately, that’s not really happening.

— Could you, please, give your assessment of the draft law on the extra-judicial prohibition by the Prosecutor General’s Office of the activities of media outlets. It could be adopted as early as 18 May. 

— I am familiar with the draft. I very much hope it will be rejected but it might well be passed. As a well-known State Duma deputy said, “We can pass any law.” They really are convinced of this. I told him at the time, “In that case pass a law on the repeal, on Russian territory, of the law on universal gravitation. They’ll put a monument up to you in your own lifetime.”

— Did he understand what you were talking about?

— I don’t know whether he did or not (laughs). In any case, this conviction that parliament can pass any law it wants is highly dangerous. In actual fact, a legislative body can only pass a law that the Constitution allows it to pass. It may not arbitrarily go beyond the limits of the competences established in the Constitution, nor violate citizens’ rights guaranteed by the Constitution. It may not. The legislative assembly is bound by the country’s Basic Law. This is one of the cornerstones of the rule of law. 

President Putin has very frequently used the phrases “the dictatorship of the law” and “the rule of law”. That’s exactly as it should be. Only the law that corresponds to the Constitution. Of course, the draft law you asked about violates the Constitution.

When I read it for the first time, I realised it had been “scribbled on someone’s lap”. All in a rush. It even has paragraphs that are repeated. Everything that can be confused is confused. They want an extrajudicial procedure to recognise a media outlet’s certificate of registration as invalid. How can that be done?  If you want to do that, you must turn to Article 16 of the law “On Mass Media”, which talks about the procedure for stopping a media outlet from publishing.

Since as long ago as 2002, it has been possible to close down media outlets on the initiative from the Prosecutor’s Office. Under the law “On Countering Extremist Activities”. That’s where the right is prescribed for agencies of the Prosecutor’s Office to go to court after a single warning (or no warning at all) to stop a media outlet publishing. If you must shut down a media outlet, do it in line with Article 16.

Why come up with new mechanisms by deeming a media outlet’s certificate of registration invalid? It’s tantamount to issuing a death certificate instead of carrying out the death sentence. Utter ignorance. The people who are trying to rewrite the law on the media have, clearly, never even read it. That’s unprofessional. 

Translated by Graham Jones, Ecaterina Hughes and Melanie Moore

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