OVD-Info lawyer Darya Korolenko analyses the new law on “foreign agents”

1 December 2022

Source: OVD-Info

On 1 December the law “On Monitoring the Activities of Persons under Foreign Influence” came into force, as did numerous legislative amendments to the regulation of “foreign agents”. OVD-Info lawyer Darya Korolenko analyses what has changed in the legislation on “foreign agents,” in particular so far as concerns the list of affiliated individuals and the two rather than four registers, along with the other innovations.

What will change:

  • There will now be two “foreign agent” registers instead of four — “the integrated register of foreign agents” and “the integrated register of individuals affiliated to foreign agents”;
  • New reporting requirements will emerge;
  • There is to be strict liability for failure to report to the Ministry of Justice;
  • A new way of labelling is envisaged, which will extend to participants in a “foreign agent”;
  • Banking, family and commercial confidentiality is lifted. This means that the Ministry of Justice will be entitled to receive reports on the transactions, accounts and investments of any physical or legal persons “given the existence of signs that the law on ‘foreign agents’ has been broken” and to receive any documents from other agencies, even those containing information that is protected by law;
  • A single list of prohibitions for all foreign agents.

What will the reporting requirements now be for all “foreign agents”?

  • annually: programmes that are to be or are already being implemented, other documents that constitute the basis for taking action;
  • one every six months: a report on each of the following – the “foreign agent’s” activities, programmes, structure; its participants; the people who make up its governing bodies and its staff;
  • once a quarter: a report on each of the following –  the bank accounts used to carry out the foreign agent’s activities; its goals and expenditure; the receipt from foreign sources of organizational and methodological, scientific and technological and other forms of assistance.

There is to be a public report for all categories of “foreign agent”. Previously, only non-profit “foreign agents” had to post an open-access public report on their website and in the mass media. Now, “once every six months a foreign agent is obliged to post on the Internet or to submit to the mass media for publication a report on its activities in the form of the information defined by an authorized body”.

The first of these public reports is to be published before 15 May — liability is the same as for failure to submit a routine report. Other reports must be submitted for the first time before 15 February and subsequently as scheduled. 

What liability do “foreign agents” face?

Liability remains as before — it is different for different categories of “foreign agent” although they are all now on the same register, which creates additional uncertainty. To date, the draft law expanding liability has only been passed in its first reading. 

Liability for failure to submit reports or to provide labelling is governed by Articles 19.7.5-3 and 19.7.5-4  of the Code on Administrative Offences for unregistered non-governmental organizations and individuals, respectively. The maximum fine for organizations is 100,000 and for individuals 50,000 roubles.

Non-profit “foreign agents” are simultaneously liable under two articles: 19.34 and 19.7.5-2 of the Code on Administrative Offences.

“Foreign agents” formerly included in the mass media register but now placed on the register for “distributing information destined for an unlimited number of people” are liable under Article 19.34.1 of the Code on Administrative Offences, which, in the event of a repeat offence, falls under Article 330.1, Part 2, of the Russian Criminal Code. Failure to submit a statement about being placed on the register by an individual engaged in the “targeted harvesting of information in the sphere of RF military activity” may lead to a criminal charge and a custodial sentence of up to five years (Article 330.1, Part 3, of the Russian Criminal Code), as may repeat offending by an individual who is a “foreign agent”. Article 330.1, Part 1, remains for the moment for non-profits and NGOs that are “malicious offenders against” compliance with obligations to submit the documents necessary for inclusion in the register.

Other penalties are also envisaged under the law that came into force on 1 December:

  • abolition (for repeat failure to submit reports);
  • programme prohibition — or the threat of abolition (for failure to comply with this rule);
  • the blocking of informational resources.

Who will be on the registers?

All existing registers are amalgamated into one. 

“Persons included in the registers on the day this federal law comes into force retain (or acquire) the status of foreign agent and are subject to inclusion in the integrated register of foreign agents.”

What will the integrated register of “foreign agents” contain?:

  • the full name of the “foreign agent”; 
  • their address (location) in the case of individuals — Individual Insurance Account Number/Individual Taxpayer Number;
  • references to an informational asset;
  • the full name or the first name, patronymic and surname of individuals who participate in non-governmental or other organizations;
  • the basis for inclusion in the register by citing specific tenets of the federal law..

What must be labelled?

Material produced and (or) distributed in the course of the “foreign agents’” political or other activity as set out in in Article 4 of the Federal Law “On Monitoring the Activities of Persons under Foreign Influence”, material related to this activity and all materials sent to bodies of state authority. 

NB: such material must be labelled as “a foreign agent” itself, as must the founders, members, participants and leaders of legal persons and non-governmental organisations which are “foreign agents”, as well those of other associations.  A special form of labelling has even been devised for them.

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This material (information) ___________ (that has been produced, distributed and (or) despatched) by______________ (surname, first name, patronymic if the person has one) who is ______________(a founder, member or participant, director, or a person belonging to the governing body, as set out in Article 9, Part 4, of the Federal Law “On Monitoring the Activities of Persons under Foreign Influence”) that is included in the register of foreign agents

What must now be done to end up on the register?

Engage in political “or other” activity and receive support from or be “under foreign influence of other kinds”.

The wording of the law makes its application unlimited and absolutely unpredictable, in other words, practically anyone may be deemed a “foreign agent”. Support, for example, covers a foreign source’s provision of organizational and methodological, scientific and technological and other forms of assistance, in other words, anything a legislator wishes to regard as such. The authors of the law themselves acknowledged that its wording was deliberately unrestricted to give more scope to administrators of the law. 

What do Russian lawmakers regard as “political activity”?

  • Membership of an organization and the holding of public actions;
  • participation in an activity seeking to obtain a specific electoral outcome, in observing elections, party political activity;
  • public appeals to the bodies of public authority or to their officials, as well as other actions seeking to apply pressure to their activities, including actions seeking the adoption, amendment or repeal of laws or other statutory instruments;
  • the dissemination of opinions about the decisions being taken by bodies of public authority and the policy conducted by them;
  • the formation of social and political views and beliefs, including by means of public opinion polls and the publication of their results or the conducting of other sociological research;
  • the implication of citizens, including minors, in the activities listed above.

What do Russian lawmakers consider “other activities”?

  • Purposeful collection of information in the field of military activities of the Russian Federation;
  • Distribution of printed, audio, audio-visual and other messages and materials intended for the general public and (or) participation in the creation of these messages and materials;
  • Financing of activities from clause 2.

Who are “affiliated persons”?

According to the new amendments it is a person:

  • being (have been) a member of the bodies of an unregistered non governmental organization or a legal entity that has been designated a foreign agent, and (or) being (have been) their founder, member, participant, director
  • Carrying out (having carried out) political activity and receiving (having received) money and (or) other property from foreign agents, including through intermediaries, for carrying out political activity.

What information will be held on the registry of “affiliates”?

  • Tax payer’s identification number, individual national insurance number;
  • Passport data, information on place of permanent domicile or temporary residence (if any);
  • Information on who the person or organization is affiliated with.

How much of this information will be published on the website of the Ministry of Justice is not yet known.

Where does the Ministry of Justice plan to take this information from?

  • The Ministry of Internal Affairs (except for the results of operational and investigative activities),
  • The Federal Tax Service,
  • The Federal Service for Supervision of Communications, Information Technology and Mass Media (Roskomnadzor),
  • The Pension Fund,
  • Other state bodies and organizations also provide information for the purpose of maintaining the register.

How are “affiliated persons” different from “foreign agents”?

Individuals affiliated with “foreign agents” are not subject to the requirements and restrictions established for “foreign agents.

In essence, the register of “affiliated persons” is a list on the Ministry of Justice’s website without requirements and restrictions. However, in order to cease being “affiliated,” it is not enough simply, for example, to resign from a “foreign agent” organization. One can only secure the removal of one’s name from the registry two years after any “relations” with the “foreign agents” have ended.

In addition, since the law is retroactive, having contact with an organization in the past, even before it was granted “foreign agent” status, can be a sufficient basis for attribution of an affiliation.

  • Как минимум 18 дискриминационных запретов: среди них запрет жертвовать деньги политическим партиям, запрет работать в государственных и муниципальных органах, силовых структурах; запрет страховать средства на банковских счетах. Полный перечень запретов мы уже анализировали в нашем проекте «Инотека».

What else is new for “foreign agents”?

  • Information “contained in information output produced by a ‘foreign agent'” is now prohibited for distribution among children” – labels indicating a minimum 18 years of age are now required on printed materials, websites, and social networks. Books created by “foreign agents” can be sold only in opaque packaging;
  • The Ministry of Justice can conduct scheduled and unscheduled inspections of “foreign agents,” and even send its representatives to their events;
  • Persons who “intend to act as a ‘foreign agent'” are themselves obliged to take the requisite action to ensure they are included in the registry – and to do this by submitting the huge number of requisite documents;
  • There are at least 18 discriminatory bans: these include a ban on donating money to political parties, a ban on working in state and municipal bodies and law enforcement agencies, and a ban on insuring funds held in bank accounts. We have already analyzed the complete list of prohibitions in our project “Inoteka.”

Translated by Melanie Moore

Что еще нового для «иноагентов»?

  • Информация, «содержащаяся в информационной продукции, произведенной „иностранным агентом“, теперь запрещена к распространению среди детей» — необходимы маркировки 18 на печатной продукции, сайтах и социальных сетях. Книги, созданные «иноагентами», можно будет продавать только в непрозрачной упаковке;
  • Минюст может проводить плановые и внеплановые проверки «иноагентов», и даже — направлять своих представителей на их мероприятия;
  • Обязанность лиц, которые «намереваются действовать в качестве „иностранного агента“» включаться в реестр самостоятельно — предоставляя весь огромный перечень необходимых документов;
  • Как минимум 18 дискриминационных запретов: среди них запрет жертвовать деньги политическим партиям, запрет работать в государственных и муниципальных органах, силовых структурах; запрет страховать средства на банковских счетах. Полный перечень запретов мы уже анализировали в нашем проекте «Инотека».
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Translated by Melanie Moore and Simon Cosgrove

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