Closed Contracts Expression
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A Russian Magistrates’ Court held that an independent Russian newspaper had violated the law by allowing dissemination of “knowingly unreliable socially significant information under the guise of reliable messages … posing a threat of mass violation of public order and public safety” during the period of mass protests in Moscow. After the newspaper had published an article about the training of “provocateurs” in Moscow, Roskomnadzor – the Federal Service for Supervision of Communications, Information Technology, and Mass Media – requested that the article be removed from the online news site. Despite the newspaper complying, Roskomnadzor brought legal proceedings against the newspaper. The Court held that the removal of the article was irrelevant as the risk to public order had occurred with its publication, and so it had committed an administrative offense, and imposed a fine of 200 thousand rubles (around $2,700 USD at the time).
Columbia Global Freedom of Expression notes that some of the information contained in this report was derived from secondary sources.
The Russian editorial and publishing house “Novaya Gazeta” is an autonomous non-profit organization and an independent newspaper based in Moscow, Russia. The newspaper’s editor-in-chief is Dmitry Muratov. Following the request of the General Prosecutor’s Office on measures of information access restriction, Roskomnadzor – Russia’s Federal Service for Supervision of Communications, Information Technology, and Mass Media – identified an article by journalist Tatyana Yurasova on Novaya Gazeta’s website which, Roskomnadzor determined, contained “unreliable socially significant information.” The publication alleged there was training of so-called “provocateurs” taking place at a suburban Moscow sanatorium in the Odintsovo district, and that the provocateurs were being prepared to act in the interest of authorities by displaying aggression on the side of protesters (as opposed to the police) at mass protest political rallies. According to the Prosecutor’s offices of the Moscow region, such activities – aimed at preparing participants of mass riots – were not taking place at the sanatorium. Roskomnadzor sent a notice on restriction of access to the publication to the newspaper. Novaya Gazeta compiled and removed the article from its website.
As Interfax reported, Roskomnadzor compiled an administrative protocol against Novaya Gazeta despite the fact that the newspaper had removed the article at the request of Roskomnadzor on January 23, 2021 – the day it was published.
Federal Law No. 149-FZ “On Information, Information Technologies and Information Protection” (Information Law), dated July 27, 2006 regulates the spread of information in the Russian Federation and addresses misinformation. Part 1 of Art. 15.3 titled “Procedure for Restricting Access to Information Distributed in Violation of the Law” states that if “knowingly unreliable socially significant information spread under the guise of reliable messages” is identified on the Internet, the Prosecutor General of the Russian Federation or the Prosecutor’s deputies engage the responsible federal executive body with a request to restrict access to such information that “creates a threat of harm to life and/or health of citizens, property, a threat of mass disruption 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 facilities, industry or communications.”
Law No. 2124-1 “On the Mass Media” (Mass Media Law), dated December 27, 1991 regulates the distribution of information by anyone affiliated with media outlets in Russia. According to Part 1 of Art. 56, “founders, editorial offices, publishers, distributors, state bodies, organizations, institutions, enterprises and public associations, officials, journalists, authors of distributed messages and materials” are liable for violations of the legislation of the Russian Federation on mass media.
In case of non-compliance with these federal law provisions, a court would apply Article 13.15 of the Code of Administrative Offenses of the Russian Federation (the Code) titled “Abuse of Media Freedom.” Part 9 of this 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 Tsareva Yu.S. of Magistrates’ Court No. 359 in the Basmanny district of Moscow, Russia, delivered the Court’s decision. The main issue before the Court was whether Novaya Gazeta as a media outlet was non-compliant with the Information Law by having allowed the spread of misinformation about and in the context of mass protest rallies in Moscow.
Novaya Gazeta argued that the author of the article had not intended to mislead readers with the information it contained, as the newspaper had relied on information obtained from interviews with individuals. Novaya Gazeta submitted that, in accordance with Art. 41 of the Mass Media Law, the individuals interviewed had requested to remain anonymous which had been indicated in the text of the publication. Novaya Gazeta stated that the author had no reason to doubt the information received from the interviews due to the knowledge of the interviewees. The newspaper sought the dismissal of the case on the grounds that Novaya Gazeta had complied with the access restriction notice of Roskomnadzor and had removed the article from its website. It further argued that the information in the publication did not pose a threat of harm to the life and/or health of citizens, and/or a threat of mass disruption of public order and safety, and that an assumption of a threat was not substantial to establish the presence of such a threat.
The Court rejected Novaya Gazeta’s argument that there was no violation because the author had relied on knowledgeable anonymous interviewees, and noted that the argument rested on “an incorrect interpretation of actual events,” as well as “an incorrect interpretation of substantive law” [p. 3]. The Court held that the spread of information about alleged training of provocateurs for mass rallies taking place at a suburban Moscow sanatorium posed “a threat of mass violation of public order and public safety, since this article was posted during the period of mass actions” [p. 4].
The Court held that, even though the newspaper had removed the article from its website at the request of Roskomnadzor, the publication had initially been open for access by an unlimited number of people and so could have posed “a threat of a mass violation of public order and public safety, or [could have led] to unauthorized protest actions, as well as to violent manifestations during mass actions in Moscow” [p. 4].
The Court referred to the statements of the Deputy Prosecutor of the Moscow Region and the executive director of the suburban Moscow sanatorium in the Odintsovo district who had both stated that no such activities were taking place on the territory of the sanatorium.
The Court cited Article 10 of the European Convention on Human Rights, which protects everyone’s right to freely express their opinion, but emphasized that the protection of public order is “incompatible with the use of mass media to spread materials that contain knowingly unreliable socially significant information under the guise of reliable messages, posing a threat of mass violation of public order and public safety” [p. 4]. The Court commented that the Novaya Gazeta could have realized its right “to request information about the activities of state bodies, local self-government bodies, organizations, public associations, their officials” under Art. 39 of the Mass Media Law, and found that the newspaper had failed to present evidence that it had done so [p. 4].
The Court held that Novaya Gazeta was guilty of committing an administrative offense under Part 9 of Art. 13.15 of the Code, and imposed an administrative fine in the minimum amount, 200 thousand rubles (around US$2.7 thousand at the time), “without confiscation of the subject of the administrative offense” [p. 5].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court’s decision further contracts expression in Russia and demonstrates the government’s efforts to control and censor media amid mass protest political rallies. The article in question had been published in the context of protests in support of Russia’s jailed opposition leader Alexey Navalny which occurred in more than 100 cities across the country. On the same day as this ruling, the same Court also found Dmitry Muratov, the newspaper’s editor-in-chief, guilty of committing an administrative offense under under Part 9 of Art. 13.15. Code of Administrative Offenses of the Russian Federation in connection to the same article by Yurasova, and imposed a fine of 60 thousand rubles (around US$815 at the time). Court cases against both Novaya Gazeta and Muratov under Part 9 of Art. 13.15. of the Code had been initiated earlier in context of the COVID-19 pandemic. On August 17, 2020, the same Court held that Novaya Gazeta and Muratov allowed the dissemination of knowingly unreliable socially significant information to take place under the guise of reliable messages, posing a threat of mass violation of public order and public safety, in response to the newspaper’s publication about the quarantine on the nuclear submarines “Voronezh” and “Smolensk.” The Court imposed fines of 200 thousand rubles (around US$2700 thousand at the time) and 60 thousand rubles (around US$822 at the time) for the newspaper and Muratov respectively. On December 9, 2020, Basmanny District Court of Moscow upheld orders from Magistrates’ Court No. 359. which had found Novaya Gazeta and Muratov guilty on the same charges – under Part 9 of Art. 13.15. of the Code. According to Interfax, the cases had been initiated in response to the newspaper’s publication about the coronavirus situation in Chechnya. The Court imposed fines of 200 thousand rubles (around US$2500 thousand at the time) and 60 thousand rubles (around US$763 at the time) for the newspaper and Muratov respectively.
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