Content Regulation / Censorship
Loughran v. Century Newspapers Ltd
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A Magistrates Court in Moscow, Russia held that an editor of a television channel’s website had allowed dissemination of knowingly unreliable socially significant information to take place under the guise of a reliable message, posing a threat of harm to the life and health of citizens, and/or a threat of mass disruption of public order and safety. Roskomnadzor – Russia’s Federal Service for Supervision of Communications, Information Technology, and Mass Media – had identified a publication of concern and compiled an administrative protocol against the editor. Roskomnadzor found that the publication contained misleading information about COVID-19. The Magistrates Court agreed, stressing that although freedom of expression was a constitutionally-protected right, it could be limited to prevent the spread of misleading information which pose threats to the country. It held that the editor was liable for any publication on the website, even if the publication relayed the opinion of an expert.
On March 31, 2020, the General Prosecutor’s Office of the Russian Federation issued a request to Roskomnadzor – Russia’s Federal Service for Supervision of Communications, Information Technology, and Mass Media – to undertake measures of information access restriction. Roskomnadzor proceeded with conducting a control procedure of the Tsargrad website content, during which the agency identified a publication dated March 25, 2020. Tsargrad is a conservative Russian TV channel, known for Orthodox Christian content and support of Vladimir Putin. Daria Tokareva is the editor-in-chief of Tsargrad’s website. Roskomnadzor assessed the publication as containing “knowingly false socially significant information about COVID-19” [p. 1]. The agency found that the publication contradicted the official statements of the World Health Organization that had declared the COVID-19 outbreak a global pandemic on March 11, 2020, as well as the publicly available data of the Communication Center of the Government of the Russian Federation, Russia’s Federal Service for Surveillance on Consumer Rights Protection and Human Wellbeing (Rospotrebnadzor), and other government agencies. All official statements had been published on the government website – стопкоронавирус.рф [stopcoronavirus.ru]. Roskomnadzor found that Tsargrad’s publication posed a threat of harm to citizens and/or public order and security.
Law No. 2124-1 “On the Mass Media” dated December 27, 1991 (the Mass Media Law) regulates the distribution of information by anyone affiliated with media outlets in Russia. Article 4, titled “Inadmissibility of Mass Media Freedom Abuse”, prohibits the use of “hidden inserts and other techniques and ways of disseminating information that affect the subconscious of people and/or have a harmful effect on their health.” Article 19, “Editorial Status”, states that the editor-in-chief runs the editorial office and remains responsible for following media activity related law provisions. Article 26, “Publication (Broadcast)”, states that the distribution of media materials is allowed only upon the approval of the editor-in-chief. Article 49, “Duties of a Journalist”, requires a journalist to verify the information upon receiving it. Article 51, “Inadmissibility of Abuse of Journalists’ Rights”, prohibits journalists from using their rights “in order to conceal or falsify publicly significant information, spread rumors under the guise of reliable messages.”
Federal Law No. 149-FZ “On Information, Information Technologies and Information Protection” dated July 27, 2006 (the Information Law) regulates the spread of information in the Russian Federation and addresses misinformation. Part 6 of Article 10 of the law titled “Dissemination or Provision of Information” prohibits the spread of any information that falls into the categories of “war propaganda, inciting national, racial or religious hatred and enmity,” as well as any other information, the spreading of which incurs criminal or administrative liability. Part 1 of Article. 17 states that violation of the law provisions “entails disciplinary, civil, administrative or criminal liability in accordance with the legislation of the Russian Federation.”
Tokareva challenged Roskomnadzor’s decision in the Magistrates’ Court No. 369 in the Tverskoy District of Moscow, Russia. In cases of non-compliance with the Information and Mass Media law provisions, a court resorts to Article 13.15 of Code of Administrative Offenses of the Russian Federation (the Code) titled “Abuse of Media Freedom.” Part 9 of that article imposes an administrative fine if “dissemination of knowingly unreliable socially significant information under the guise of reliable messages” occurs in the media or on the Internet and creates “a threat of harm to the life and/or health of citizens, property, a threat of a mass violation of public order and/or public safety, or a threat to obstruct or stop the functioning of life support facilities, transport or social infrastructure, credit organizations, energy, industry or communication facilities, if these actions of the person disseminating information do not contain a criminally punishable act.” The fine amount ranges from 30 thousand to 100 thousand rubles (approx. US$475 to US$1500 in July 2020) for individual citizens, from 60 thousand to 200 thousand rubles (US$950 to US$3000) for officials, and from 200 hundred thousand to 500 thousand rubles (US$3000 to US$8000) for legal entities.
Judge M.S. Buraya delivered the Court’s decision. The main issue before the Court was whether Tokareva (as the editor-in-chief of the Tsargrad website) allowed the spread of misinformation about and in the context of the COVID-19 pandemic, thus failing to comply with the Information and the Mass Media laws.
Tokareva sought the dismissal of the case as the Tsargrad website had complied with Roskomnadzor’s access restriction request and deleted the publication. She maintained that the publication relayed the opinion of an expert, which constituted direct speech and a value judgment. Tokareva noted that Tsargrad had an audio recording of the conversation with the expert expressing their opinion – even though the Court found that Tokareva “did not insist on examining that recording at the court session” [p. 2]. Tokareva submitted that the publication had indicated that the expert’s opinion could diverge from the position of the editorial office, and that the expert remained the primary source of the COVID-19 related information in the publication, as prior to the article publication a Tsargrad representative had gotten in touch with the expert in response to their social media post on the matter. Tokareva argued that, due to the novelty of the coronavirus infection, expression of assumptions about it was not prohibited and that the article had not intended to harm the current government. She added that verification of the information in question had not been possible.
Roskomnadzor’s representative – the Head of the Legal Support Department – argued that Tokareva was liable to administrative prosecution as the article containing false information about coronavirus had been published in the public domain for access by an unlimited number of people. This representative submitted that Tokareva had violated Article 4 of the Mass Media Law and Part 6 of Article 10 of the Information Law. The Deputy Head of the Control Supervision Department in the Sphere of Mass Communications elaborated on the provisions of the Information Law. He explained that, under Part 1 of Article 15.3, if “knowingly unreliable socially significant information under the guise of reliable messages” is identified on the Internet, the Prosecutor General of the Russian Federation or the Prosecutor’s deputies refer to the responsible federal executive body with a request to restrict access to such information that “creates a threat of harm to the life and/or health of citizens, property, a threat of mass disruption of public order and/or public safety, etc” [p. 3]. This representative reiterated that Roskomnadzor had acted in compliance with the request of the General Prosecutor’s Office and identified a publication with false information about COVID-19, including on the way the virus had been spreading. He also referred to Governmental Decree No. 66 “On Amendments to the List of Diseases Dangerous to Others” dated January 31, 2020, which had included coronavirus on the list of diseases dangerous to the population, and so argued that the publication in question could have misled citizens about coronavirus in terms of the infection spreading and the purposes of testing the population. This representative submitted that Tokareva was liable to administrative prosecution in accordance with Part 9 of Article 13.15 of the Code, which imposed a fine for “dissemination of knowingly unreliable socially significant information under the guise of reliable messages”, which poses a threat of harm to citizens or public order.
The Court dismissed Tokareva’s argument that Tsargrad’s editorial office had not authored the opinion in question and that the publication simply relayed the expert’s value judgment. Citing Article 49 of the Mass Media Law, the Court stressed that a journalist must verify the information upon receiving it, and referring to Article. 51 of the same law, it emphasized that a journalist must not use their rights to spread “rumors under the guise of reliable messages” [p. 6]. The Court defined “rumors” as “knowingly and obviously false information” and “the spread of rumors under the guise of reliable information” as “the dissemination of any, completely or partially falsified, information about the facts and comments on them under the guise of real, verified, true information, creating the illusion of the reliability of information” [p. 6].
The Court found that expressing one’s opinion – as well as publishing one’s opinion – does not remove the liability of an editorial office, an editor-in-chief, or a journalist, when there has been infringement of the values protected by the Constitution and the current legislation, including “a possible threat of harm to life and/or the health of citizens, property, the threat of a mass violation of public order and/or public safety” [p. 6].
The Court referred to Article 29 of the Constitution, emphasizing everyone’s guaranteed freedom of thought and freedom of speech, as well as media freedom. In addition, the Court referred to Part 4 of Article. 15 of the Constitution, and stressed that International Law provisions are an integral part of Russia’s legal system. Regarding media freedom, the Court referred to Part 1 of Article 10 of the European Convention on Human Rights which protects everyone’s right to freely express their opinion, including “freedom to hold opinions, to receive and impart information and ideas without any interference from public authorities” [p. 6]. However, the Court noted that Part 2 of Article 10 which states that such freedoms entail corresponding obligations and responsibilities and can be accompanied by restrictions and sanctions addressed by law and imposed “in the interests of national security, territorial integrity or public order, to prevent disorder or crime, to protect health or morality, to protect the reputation or rights of others, to prevent the disclosure of information received confidentially, or to maintain the authority and impartiality of the judiciary” [p. 7]. The Court emphasized that the provisions of the norm were to be interpreted in accordance with the legal position of the European Court of Human Rights, expressed in its rulings.
The Court held that dissemination of false socially significant information on the topic of COVID-19, its spread and vaccination against the virus can pose threats to citizens’ life and health, public order and safety, due to possibly entailing “the emergence of panic among the population [and] unjustified dissatisfaction with the activities implemented in connection with the threat of the spread of the new coronavirus infection (COVID-19)” [p. 7].
Reiterating Tokareva’s position as an editor-in-chief, the Court referred to Article 2.4 of the Code, which states that an executive is liable to administrative responsibility if they commit an administrative offense as a result of their failure to carry out their official duties. The Court also referred to Articles 19 and 26 of the Mass Media Law in emphasizing the responsibility of an editor-in-chief to ensure the editorial office’s compliance with media activity related law provisions and to approve media materials before their publication. The Court found that the Tsargrad website proceeded with publication of the article, having failed to verify the information contained in that article.
Accordingly, the Court found Tokareva guilty of committing an administrative offense under Part 9 of Art. 13.15 of Code and imposed an administrative fine of 60 thousand rubles (around $845 at the time).
On August 4, 2020, Tokareva appealed the decision. The Appellate Court – the Tverskoy District Court of Moscow – refused “to restore the time limit for filing a complaint” on August 19, 2020, and so the decision of the First Instance Court entered into force.
Tokareva was also found guilty of a second administrative offense under Part 9 of Article 13.15 of the Code. The same judge at the same Magistrates Court had issued a ruling against Tokareva on the same day as in this case. The two rulings are identical in the parts of the law applied, the defendant party’s argumentation, the Court’s reasoning, the charges, and the imposed fine amount. On August 19, 2020, the Appellate Court upheld that decision. The total amount of fines imposed on Tokareva was 120 thousand rubles (around $1.6 thousand at the time).
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court’s decision contracts expression in Russia and demonstrates the government’s efforts to control and censor media amid the COVID-19 pandemic. According to the International human rights group Agora report, even though Part 9 of Article 13.15 of the Code was adopted on March 18, 2019, that provision had become a governmental tool to control the spread of information “that differed from official press releases” during the pandemic. As Kommersant reported, according to the Russian Prosecutor General’s Office the number of so-called “fakes” (publications with inaccurate information) had increased more than tenfold at the time of the pandemic.
This case should be seen in the context of other court cases on misinformation initiated against editors-in-chief of media outlets. On August 3, 2020, the Presnensky District Court of Moscow upheld an order from Magistrates Court No. 416, which had found Vitaly Ruvinsky, editor-in-chief of the website of radio station Echo of Moscow, guilty under Part 9 of Article 13.15. of the Code, and imposed a fine of 60 thousand rubles (around $869 at the time), while in a separate case, the Court also ruled against the radio station itself under the same charges and imposed a fine of 200 thousand rubles (around $2.9 thousand at the time). Roskomnadzor compiled administrative protocols, having identified the publication of an interview with political scientist Valery Solovey on the Echo of Moscow website, in which Solovey stated that the authorities were hiding the real coronavirus death rate. On August 17, 2020, Magistrates Court No. 359 in the Basmanny district of Moscow found Dmitry Muratov, editor-in-chief of independent newspaper Novaya Gazeta, guilty of committing an administrative offense under Part 9 of Art. 13.15. of the Code. As Novaya Gazeta reported, the Court imposed a fine of 60 thousand rubles (around $822 at the time), while in a separate case, the newspaper itself received a fine of 200 thousand rubles (around $2.7 thousand at the time) under the same charges. Roskomnadzor compiled administrative protocols in response to the newspaper’s publication about quarantine measures on the nuclear submarines “Voronezh” and “Smolensk.”
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