Commercial Speech, Content Regulation / Censorship, Licensing / Media Regulation
Irwin toy ltd. v. Quebec
On Appeal Contracts Expression
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The Tversk District Court of Moscow levied a 22,250,000 rubles ($340,000) fine on the New Times, an independent online publication. The fine, the largest in Russian judicial history imposed on a media company, was for the New Times’ failure to disclose funds that it received from a “foreign agent.” The New Times conceded that it failed to report the funds, but argued that the period of limitations to hold it accountable expired. Prosecutorial and judicial authorities at first agreed with this position. However, at a later stage, for reportedly politically motivated reasons, the authorities recanted their concession. Further, a court hearing that resulted in the imposition of the fine took place hastily and without the presence of the New Times’ representatives, in violation of Russian and international fair trial standards.
The New Times is one of the oldest publications in Russia and began circulation in 1943 under the name “War and the Working Class.” During the Soviet period, it published in English, French, German, Spanish, Polish, Czech and Arab languages. Since 2017, it began publishing solely online.
On May 4, 2018, the Deputy Tversk Inter-Regional Prosecutor of Moscow requested information from the New Times concerning a possible violation of article 19.2 of the Federal Law on Mass Media. The article requires media companies to report on any funds that they received from abroad and from entities officially labeled as “foreign agents.” Under Russian law, a “foreign agent” is an organization that engages in political activity and receives foreign funding.
The Prosecutor approached the New Times per the request of a member of Russia’s parliament who obtained information that the New Times did not disclose to the authorities large sums received from the “Fund in Support of Free Press,” a non-governmental organization that has been registered as a foreign agent in Russia since 2014.
On June 8, 2018, the Deputy Tversk Inter-Regional Prosecutor of Moscow issued a written allegation that in the 2nd quarter of 2017 and the 1st quarter of 2018 the New Times received 24.5 million rubles ($360,000) from a foreign agent, and failed to disclose this information to Roskomnadzor, Russia’s “Federal Service for Supervision Of Communications, Information Technology, And Mass Media.”
On July 8, 2018, the New Times notified Roskomnadzor that it received funds from a foreign agent in the 2nd quarter of 2018.
On July 30, 2018, the Deputy Tversk Inter-Regional Prosecutor of Moscow summoned the director of the New Times, Ms. Yevgeniya Albats, to discuss the allegations and the likelihood of opening an administrative case against the publication. On July 31st, Ms. Albats and a lawyer for the New Times arrived at the Prosecutor’s Office and argued that the period of limitations to open a case concerning the allegations ended on July 11, 2018. This explanation was based on a 2005 Declaration No. 5 of the Plenary of the Supreme Court of Russia. The prosecutor’s office conceded that the statute of limitations expired and agreed to halt the process of initiating an administrative case against the New Times.
Despite the concession that the statute of limitations expired, on September 24, 2018, the prosecutor’s office once again summoned Ms. Albats to discuss the possibility of opening an administrative case against the New Times for its failure to disclose the funds it received in 2017 and 2018. On September 25, Ms. Albats and a lawyer for the New Times arrived at the Prosecutor’s Office and repeated earlier argument that the period of limitations had expired. However, unlike in July, this time, the authorities rejected the publication’s arguments, and submitted the case documents for judicial review. On September 26, 2018, the Tversk District Court of Moscow returned the case files back to the Prosecutor on the ground that the statute of limitations had expired.
On October 2, 2018, the New Times notified Roskomnadzor that it received funds from a foreign agent in the 3nd quarter of 2018.
On October 16, 2018, the Prosecutor appealed the judgment of the Tversk District Court. The New Times was never notified about the appeal or of any related hearings.
On October 22, 2018, Ms. Albats interviewed Mr. Alexey Navalny, a prominent Russian opposition politician, during her show on “Echo of Moscow,” a TV and Radio company unrelated to the New Times. During the interview, the New Times was mentioned. The next day, the New Times received a court hearing notice in relation to the prosecutor’s appeal of the September 26 decision. The hearing was scheduled for October 25, 2018.
The hearing began at noon on October 25. The New Times reiterated its legal position that the period of limitations expired. The court, this time, disagreed with the New Times’ position and ruled that the case could proceed. After the hearing ended, the court scheduled another hearing to deliberate the merits of the case. This second hearing was scheduled just three hours after the first one. The New Times and its representative were not notified about the second hearing.
The court began by justifying the reasons to proceed with the second hearing without the presence of any New Times’ representatives. It explained that the court’s staff called the New Times lawyer, but she never picked up the phone. Additionally, a court clerk left a hearing notice in a mailbox at the lawyer’s address, because she did not open the door. These actions, according to the court, satisfied all of its procedural obligations to notify the New Times.
The court then listed evidence that the New Times broke the law:
The court then declared that after reviewing the evidence it found that the administrative case against the New Times was initiated properly.
The court proceeded to explain that under article 19.2 of the Russian federal Law on Information, a media company must notify Roskomnadzor about all funds that it receives from any “foreign agent” once every quarter, and no later than on the 10th of the reporting month. According to the facts at hand, the New Times failed to meet this obligation.
The court then turned to deciding an appropriate penalty to be levied on the New Times. The tribunal clarified that in its deliberations, it assessed the facts of the case, the nature of the crime, and the financial state of the publication. On the basis of this assessment, the court held that it was appropriate to impose a onetime fine on the New Times in the amount it failed to disclose, or 22,250,000 rubles ($340,000). The publication was given 60 days to pay the fine.
The New Times appealed the decision. The publication also launched a successful crowdsourcing campaign that raised sufficient contributions to pay the fine in full.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The fine imposed on the New Times was the highest ever to be levied on a media company in Russia’s judicial history. There is no question that the New Times violated the law. However, the publication was prosecuted on the basis of a “foreign agent” law, which international human rights and freedom of expression experts criticized for its restrictions on freedom of expression through limiting funding as well as by imposing negative labels on media and human rights organizations.
Furthermore, according to precedent established by the European Court of Human Rights, particularly in Tolstoy-Miloslavsky v UK, penalties levied on publications must be proportionate to the harm suffered. In this case, the exceptionally high fine was clearly disproportionate to the unspecified harm suffered by the failure to disclose foreign funding because its size threatened the publication with closure. To add a degree of contrast, Russia’s monthly salary is estimated to be around $440.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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