By Thomas Callahan
With a Constitution that codifies restrictions on certain types of expression, and a storied history of targeting alternative political voices, it is unsurprising that Russia is currently in the midst of a campaign to silence inconvenient speech on the Internet.
This summer, I returned to Moscow to conduct legal research and reporting with a large international human rights organization (which I will not name due to the organization’s security concerns) as a Leitner Center Summer Fellow. I was tasked with researching and writing a report documenting this recent free speech crackdown in Russian legislation. This included reading Russian laws, tracking down copies of bills, and interviewing targeted activists across the country.
INCREASING SPEECH RESTRICTIONS
Having worked in Russia for years, and having been here when members of Pussy Riot were thrown in remote prisons on “extremist hooliganism” charges, I find no limits on freedom of expression really shocking anymore. But practically speaking, the sheer number of recent legislative restrictions to online speech means that human rights and free speech advocates in Russia are increasingly unsure about what could bankrupt an organization via administrative fine, or land people in jail. Although some of these restrictions identify concepts like “separatism” and “extremism” as general considerations, in practice, prosecutors increasingly conflate criticism of Kremlin policy in Ukraine, for example, with “threats to the territorial integrity” of the Russian Federation. These laws can also allow Facebook invitations to civil society events to be taken as incitement to rioting. Application of these laws is used mostly to harass political activists.
With many more such legislative proposals in the pipeline, it’s no wonder the old Soviet saying about living on top of a volcano – essentially, waiting for a governmental or societal eruption at any moment – has come back into vogue. The situation is so dire that since March 2014, Russia has been included in a group of only 19 governments in the world to be classified as “Enemies of the Internet” by Reporters Without Borders.
And while the main threat to freedom of expression comes from censorship laws, Russia’s legislature has been hard at work creating various other kinds of new rules for the Internet. These include – but are definitely not limited to – a new provision passed in May 2014 to Russia’s Law On Information that regulates blogs. Dubbed the “Bloggers Law,” it subjects any blog that gets 3,000 or more unique hits in a 24-hour period to many of the same federal regulations as national media conglomerates. The United Nations Human Rights Committee called this law both “vague” and “burdensome.” Indeed, it not only increases legal scrutiny, but also liability for charges like “incitement to rioting,” which is how prosecutors often refer to invitations to “unsanctioned” demonstrations. For these “mass media bloggers,” some types of speech carry a fine totaling 500,000 rubles – about 60 percent of the average annual income in Russia. In other cases, liability may reach one million rubles. With about 65 percent of Russians using the Internet regularly, these laws have real implications on the ability to access information.
Meanwhile, Russia’s prosecutors have been relying on the same, troubling old “extremism” sections of the Criminal Code to harass activists for what they say, or even share, online. In a country compliance review for the International Covenant on Civil and Political Rights (ICCPR), the Human Rights Committee warned that the “extremism” sections of Russian criminal law could be used “silence individuals critical of the State party’s foreign policy[.]” One of the higher-profile cases this summer centered on exactly that fact set. Recent use of one “anti-extremism” provision that threatens speech online has included the conflation of harmless criticism of Russia’s annexation of Crimea with a “threat to the territorial integrity” of the Russian Federation.
It is generally accepted that governments can restrict certain types of harmful speech, such as hate speech. But Russia’s restrictions on online expression are blatantly used to silence unorthodox political voices, which is illegal under international human rights law. While case-by-case restrictions on free speech in specific instances, such as tangible threats to public or individual safety, could be legal, such a process is rarely used in Russia.
CONTROLLING THE FLOW OF INFORMATION
Aside from restricting individual voices online, Russia is creating new controls on how online information flows and is accessed. Since November 2012, Roskomnadzor (the federal media and telecom oversight agency) has maintained a list of banned websites. In its March 2015 review of Russia’s compliance with the ICCPR, the U.N. Human Rights Committee noted that the Internet black list is part of “a number of developments that create separately and jointly a substantial chilling effect on freedom of speech and expression of dissenting political opinions.”
Although a searchable database allows users to find out whether a single website has been blocked, the full list is not made public. We do know that, as of this summer, about 30,000 websites are blocked within Russia. Many of these are child pornography sites and online narcotics markets. However, many of them are also websites linked to prominent political activists. With the recent passage of a law restricting the activities of “undesirable organizations,” many international human rights groups could end up blacklisted online in Russia as well. No court order is necessary; if an official in one of a few federal agencies – or a court finds that a website has published some sort of “banned” information – Roskomnadzor will order Internet Service Providers to block access to it within Russia. Prosecutors and other federal authorities will generally point to information that would be subjected to Russia’s notoriously problematic “anti-extremism” laws when attempting to block a website.
One of many examples of unjustified interference with free speech is the Prosecutor General’s targeting this June of OZPP, a consumer protection group, after it published a legal memo advising Russian citizens against traveling to Crimea, which it called an “occupied territory.” In Russia, such an opinion may constitute a “threat to territorial integrity,” which is why the Prosecutor ordered Roskomnadzor to block parts of the organization’s website, and called on federal investigators to begin an inquiry under an “extremist” provision of the Criminal Code. OZPP could be tried under the “separatism” provision, which carries a five-year prison term. In an obvious due process violation, OZPP only learned that a case against it was already underway days later, after clients reported that they were having trouble getting its website to load.
Regulation of well-trafficked websites remains in flux, as legislative discussion opened in June on a set of amendments to the Law On Mass Media. Proposed changes would introduce the concept of “online publisher” to the law, and this is not a good thing. The bill is vague, but it would appear to subject any host website to mass media regulations if any single one of its pages gets three thousand or more unique visitors in one day. News aggregator websites, the websites of political movements and message boards are some of the main targets of this proposal.
WHAT SHOULD RUSSIA DO?
There is no place for such broad and obvious restrictions to political speech in the year 2015, especially in a country like Russia, whose actions at home and abroad have the power to sway a whole cabal of governments in its large sphere of influence. It is also not too attenuated from these developments to note Russian prosecutors’ congenital conflation of unsanctioned civil events with “mass rioting.” This peculiarity of Russian law enforcement’s relationship with society is a metaphor for the general lack of case-by-case investigation and due process broadly in the Russian legal system. Russia must enter the twenty-first century on these issues in addition to the due process questions regarding speech specifically.
Moreover, Russia is party to both the main international regional treaties that codify freedom of expression: the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights. Russia has an obligation to conduct case-by-case examinations of restrictions to speech, and not to create functionally blanket bans on some political questions. These types of restrictions are illegal no matter what. Under the European Convention, if a State party restricts expression, it must establish and disclose a purpose that relies on a security or other concerns commensurate with the degree of censorship. Russia fails to do this all too often, a practice that must end.
Furthermore, Article 29 of the Russian Constitution absolutely bars censorship (though this is incongruous with other sections of the constitution). Article 17 of the country’s Constitution also establishes international treaty obligations as an extrafederal basis for domestic legislative and jurisprudential practice. Under its own laws, Russia must bring its legislative and law enforcement practices into compliance with the international obligations it chose and claims to recognize.
Thomas Callahan was a 2015 Leitner Center Summer Fellow. He interned with an international human rights organization in Russia.
The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.
Photo courtesy of Thomas Callahan.