Content Regulation / Censorship, National Security
The Sunday Times v. United Kingdom (No. 2)
Closed Contracts Expression
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The Collegiate Body of Saint-Petersburg’s City Court upheld a ban on the distribution of the book “Eastern Reflections” in digital or print form across Russia. “Eastern Reflections” was a collection of essays written by a Polish politician and public figure that warned of the Russian threat to Eastern Europe and the Baltics, criticized the Soviet and modern Russian regimes, and recalled the atrocities committed by the nation. The Prosecutor’s Office in Saint-Petersburg followed on the complaint and successfully argued that the book should be banned because it contained intentionally false information, portrayed Russia as seeking to undermine the sovereignty of other countries in Europe, and increased the likelihood of international, inter-faith and inter-ethnic conflicts. The Russian courts agreed with the Prosecutor’s arguments, and issued a ban against the book.
This case concerns “Eastern Reflections,” which was a collection of essays from 1991 to 2003 written by a Polish politician and public figure Mr. Jan Kovac-Yezeransk. Some of the essays in the book declared Russia as the enemy of Poland and called on the Polish youth to be militarized and taught to be patriots. The Polish Institute in Saint-Petersburg decided to publish the book in Russia, so that Russians could better understand Polish citizens. The Institute ordered 530 copies of the book to be printed by the publishing house Kogita.
In February 2016, a Russian nationalist group, “The Russian Way,” filed a complaint against Kogita under Articles 282 (incitement to hatred) and 354 (rehabilitation of Nazi ideology) of the Russian Criminal Code for publishing “Eastern Reflections.” However, no one was ever convicted under these provisions for publishing the book. On February 16, 2016, Saint-Petersburg’s police confiscated all 530 copies of the book from Kogita following the complaint.
In May 2016, the Investigative Committee for Saint-Petersburg completed its review of the book and found that it did not contain any elements of extremism. However, this conclusion was later overturned.
On June 19, 2017, the Prosecutor for the Moscow District of Saint-Petersburg (Prosecutor) filed a judicial request to declare the book “extremist,” and to ban its print and electronic versions in Russia. According to the Prosecutor, the work needed to be banned in order to “defend the spiritual and moral values of the diverse people of Russia, to prevent unlawful acts by individuals and organizations, to protect the constitutional foundations, morals, rights, and legal interests of persons, to ensure the defense and security of the nation.” The Prosecutor supported the judicial request with an analysis of “Eastern Reflections” conducted by the State University of Saint Petersburg, the State University of Pedagogy, and the Ministry of Justice.
The experts concluded that the collection of essays portrayed Russia as a potential military aggressor, and a country that has committed and will commit atrocities. Additionally, the analysis concluded that the author of the book negatively portrayed Stalin, ethnic Russians, the Soviet military leadership, the Russian Government, the USSR and Russia, painting them as the enemy of Poland. Moreover, the experts found that the essays contained historical inaccuracies. An expert from the State University of Pedagogy found that “Eastern Reflections” attempted to convince readers that Soviet and Russian leaderships were cruel, thus “undermining the historical foundations and patriotic traditions tied to the protection of the Fatherland.” The Ministry of Justice analysis found that the author of “Eastern Reflections” aimed to portray the Russian “elite” as a danger to Russia and the world.
On the basis of the above analyses, the Prosecutor presented the following arguments in support of banning “Eastern Reflections” in Russia:
On August 23, 2017, the Moscow District Court in Saint-Petersburg granted the Prosecutor’s request to ban the book, thus justifying the confiscation of the books from Kogita. In September 2017, lawyers for Kogita appealed the decision to the Collegiate Body of Saint-Petersburg’s City Court.
On August 23, 2017, the Moscow District Court in Saint-Petersburg (Court) granted the Prosecutor’s request to ban the book, thus justifying the confiscation of the books from Kogita.
First, the Court listed the relevant law. It reminded that Article 29 of the Russian Constitution guarantees freedom of thought and speech. However, the constitution also restricts this freedom and prohibits incitement or advocacy of social, racial, national and religious hatred, or superiority on the basis of the aforementioned traits. Dissemination of information using telecommunication technologies is subject to the Federal Law on Information, Information Technologies, and Protection of Information. Article 10(6) of this law prohibits the dissemination of information aimed at advocacy of war or incitement to national, racial or religious hatred.
The Court then reviewed the expert analysis on the contents of “Eastern Reflection.” It highlighted that the conclusions by three sets of experts, two from academia and one from the Ministry of Justice, agreed that the book contained information the dissemination of which was prohibited across Russia, including intentionally misleading information about the USSR’s involvement in World War II. The Court found that it had no reason to question the expert conclusions. On this basis, the Court held that the information contained in the book could not be disseminated in Russia.
According to the Court, in cases concerning the question of whether information was prohibited in Russia, the fact that it had already been disseminated was legally important since it meant that the information had the potential to reach an unlimited number of persons.
The Court clarified that banning the dissemination of information in Russia was not dependent on establishing liability of some particular individual or organization, but acts as a government tool (i) to protect the spiritual and moral values of multi-ethnic Russia, (ii) to prevent acts by individuals and organizations opposed to Russia, (iii) to protect the foundations of the constitutional regime and the rights of others, and (iv) to ensure the defense and security of the nation.
In light of the above, the Court ruled that the Prosecutor met the legal threshold of Article 10 of the Federal Law on Information, Information Technologies, and Protection of Information to prohibit the dissemination of “Eastern Reflections” in Russia.
On January 15, 2017, the Collegiate Body of Saint-Petersburg’s City Court upheld the lower court’s decision.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The prohibition on the dissemination of “Eastern Reflections” in Russia clearly violated accepted freedom of expression standards and principles. The European Court of Human Rights, for example, has stated that bans on books are a danger to democratic society, and that such measures must be subject to “careful scrutiny” (The Sunday Times v. United Kingdom (No. 2)) On this occasion, the judgments of the Russian courts seem to prohibit insult against the Russian state, its government, and its history. The scope of the prohibition seems to be drawn so broadly that it captures any political or historical discussion that the Government does not agree with. Therefore, it amounts to a disproportionate restriction on the right to freedom of expression.
Additionally, the SOVA-Center, a Russian NGO that studies hate speech and xenophobia, has pointed out that the Court misapplied Russian law to impose the ban. The Federal Law on Information, Information Technologies, and Protection of Information prohibits the dissemination of xenophobic or extremist propaganda and imposes criminal and administrative penalties for its violation. However, to ban the actual illicit materials, and not simply their dissemination, State authorities must follow a specific legal mechanism. This mechanism requires that the information must first be declared “extremist” by a separate judicial process, which had not happened in this case.
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