Content Regulation / Censorship, National Security
The Sunday Times v. United Kingdom (No. 2)
Closed Contracts Expression
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Dmitry Semenov is a journalist for Open Russia (an independent media outlet), a human rights advocate, and an activist who frequently organizes rallies in his native Tsivilsk City. On January 29, 2015, he was charged with incitement of extremism for a re-post of a photo of Dmitry Medvedev (Russia’s Prime Minister) on V-Kontakte (Russia’s largest social media network). The photo was a caricature of Medvedev wearing a traditional Caucasus hat with some Arab text in the background and a statement at the bottom of the photo that read: “Death to Russian vermin.”
Semenov argued that he simply re-posted an article and that V-Kontakte automatically tagged the allegedly extremist photo in his post. He argued that he had no control over the photo tag and that he had no intention of re-posting the photo.
The court of first instance found Semenov guilty of publicly inciting extremism and fined him. The appellate court upheld Semenov’s verdict but granted him amnesty. Amnesty is available to all first time offenders per the order of President Putin to commemorate the anniversary of the end of WWII.
Some of the information in this report was derived from secondary sources.
Global FoE could not identify official legal and government records on the case and information on the case was derived from secondary sources. Global FoE notes that media outlets may not provide complete information about this case. Additional information regarding legal matters will be updated as an official source becomes available.
Dmitry Semenov, 25, is a journalist for Open Russia (an independent news site), a human rights advocate, and an activist who frequently organizes rallies in his native Tsivilsk City.
In December 2013, Semenov was charged with dissemination of extremist materials for a re-post of a photo of football fans flying a flag with a swastika. Semenov made the re-post and included comments critical of the flag and the football fans. The court acquitted him. Despite the criminal law acquittal, the prosecution initiated a case on the basis of an administrative law violation against Semenov for the re-post of the football fans’ photo. The court, in the administrative case, found Semenov guilty and fined him RUB 1,000 (roughly $30 at the time of conviction). 
On March 5, 2014, Semenov re-posted a link to an article and V-Kontakte automatically tagged a photo to the re-post. The photo was a caricature of Dmitry Medvedev, Russia’s prime minister, wearing a traditional Caucasus hat. The photo featured some Arab writing in the background and a statement on the bottom that read: “Death to Russian vermin.” 
On January 29, 2015, in possession of a search warrant, the Federal Committee on National Security searched Semenov’s residence, and presented him with charges for public incitement of extremist activities, under Russ., Crim. Code, art. 280, para. 1.
According to the Federal Committee on National Security, the photo called for the physical elimination of Russians and degraded the dignity of persons on the basis of their nationality. The Committee argued that Semenov’s re-post of the photo was intentional, and thus, his actions constituted violations of the following.
The Committee allaged that the violation of the above laws constituted a public incitement of extremist activities, a crime under Russ., Crim. Code, art. 280, para. 1.
Semenov’s defense was that the photo was widely available on Russian social media, that he did not create the photo, and that he had no intention to post or re-post it, that the re-post of the photo was done automatically by V-Kontakte.
As the proceedings were pending, Semenov was barred from leaving his city of residence and was also added to the list of extremists in Russia. The label of extremist limited Semenov to withdrawing RUB 10,000 ($155 as of Oct. 29, 2015) per month from all banks in Russia.
On September 17, 2015, the Lenin regional court of first instance found Semenov guilty of public incitement of extremism and fined him RUB 150,000 ($2,336 as of Oct. 29, 2015); the prosecution requested a fine of RUB 200,000. Semenov appealed, and on October 29, 2015, the High Court of the Republic of Chuvashia upheld the guilty verdict but granted Semenov amnesty, thus forgiving the fine and striking the conviction from Semenov’s record. Amnesty is available to all first time offenders per the order of President Putin to commemorate the anniversary of the end of WWII.
Semenov is presently seeking to appeal the decision before the European Court of Human Rights.
 Semenov on his criminal charges for a re-post, Open Russia, January 29, 2015 (Russian) https://openrussia.org/post/view/2357/
 The Federal Committee on National Security charged Semenov with extremism for a caricature, Open Russia, February 2, 2015 (Russian) https://openrussia.org/post/view/2438/
The main issue in this case was whether Semenov intentionally re-published the allegedly extremist photo. To be found guilty of disseminating extremist materials under Crim. Code, art. 280, para. 1., the prosecution needed to demonstrate the existence of intent. Semenov agreed with the prosecution’s expert testimony that the photo was extremist. However, he argued that he did not intend to post the allegedly extremist photo, but rather, that he simply re-posted an article, and that V-Kontakte tagged the extremist photo automatically. Thus, his actions lacked the “intent” element required for the crime of dissemination of extremist materials.
To prove this argument, Semenov’s lawyers invited IT experts who testified that V-Kontakte users had no control over the photos the website tagged to articles in posts or re-posts. Also, Semenov’s lawyers held an experiment during the trial that exhibited this automatic tagging of photos.
The prosecution ignored Semenov’s defense and focused solely on an expert review that found the photo to be extremist: a point with which Semenov did not argue. The prosecution also sought to portray Semenov as an individual with extremist tendencies. To show this, the prosecution cited two facts:
Despite the evidence that Semenov lacked the requisite intent, Semenov was found guilty of publicly inciting extremism. Semenov believes that the court had no choice but to find him guilty since the case against him was initiated by the Federal Committee on National Security, and that the court’s choice to apply amnesty was a compromise. He is presently seeking to appeal his case before the European Court on Human Rights.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
To be convicted of public incitement of extremism, the prosecution must show several elements of the crime, including intent and knowledge. This case portrays that, in reality, to be convicted of public incitement of extremism, for a Russian court, at least in this case, all that matters is the existence of extremist aspects in speech. Other elements of the crime play no role.
Unfortunately, such a narrow legal analysis of the crime of public incitement of extremism has allowed the crime to become a tool for prosecuting opposition in Russia.
The decision is also interesting when juxtaposed against Russia government’s censorship of information via an intermediary. For example, RosKomNadzor, Russia’s information agency, often requests intermediaries to block or delete extremist or illicit information, so that Russian users would not have access to it. However, in this case, the Russian government chose to penalize an individual, who, lacking intent, re-posted a widely available extremist photo. Why did not the government attempt to penalize both? Such behavior suggests that prosecution of extremist speech in Russia carries a political element whereby it is applied against undesirable speakers.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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