Content Moderation, Content Regulation / Censorship, Licensing / Media Regulation, Press Freedom
The Case of Novaya Gazeta
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The Magistrates’ Court No. 416 in the Presnensky District of Moscow, held that the editor-in-chief of a radio station’s website had allowed dissemination of “knowingly unreliable socially significant information” and imposed an administrative fine . The website had posted a transcript of an interview with a political scientist who had provided statistics on the Covid-19 cases and deaths in Russia which far exceeded the official count. Russia’s Federal Service for Supervision of Communications, Information Technology, and Mass Media initiated proceedings against the website, and the editor was charged for disseminating knowingly unreliable socially significant information which posed a threat of harm to the life and health of citizens, and/or a threat of mass disruption of public order and safety. The Court found the editor guilty and imposed an administrative fine. The Appellate Court confirmed the lower court’s ruling.
Echo of Moscow is an independent radio station based in Moscow, Russia.
On March 20, 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 to restrict access to information. Roskomnadzor then conducted a control procedure with regard to the Echo of Moscow website and identified a publication dated March 16, 2020 on the website, which included an interview with political scientist Valery Solovey. In the interview, referring to “unknown sources,” Solovey mentioned that “Russia had about 1600 confirmed coronavirus deaths starting from the middle of January 2020, while the number of infection cases reached an estimate of 130-180 thousand” [p. 1]. Solovey followed up by predicting “under such dynamics of the infection spreading, there [would] be 1.5-2 million cases in 10 days, which conformed to the virus spreading in other European countries” [p. 1].
According to Roskomnadzor, Solovey’s statements contradicted the official information on the website of Rospotrebnadzor – Russia’s Federal Service for Surveillance on Consumer Rights Protection and Human Wellbeing. According to Rospotrebnadzor, as of March 18, 2020, more than 122 thousand coronavirus tests were conducted in Russia, 147 infection cases were registered, and 5 people recovered. Roskomnadzor therefore regarded the interview as containing knowingly unreliable publicly significant information about COVID-19, and proceeded with compiling an administrative protocol against the website’s editor-in-chief Vitaly Ruvinsky. This was despite the fact that the Rospotrebnadzor information was published after the interview with Solovey appeared on the website.
Federal Law No. 149-FZ “On Information, Information Technologies and Information Protection” dated July 27, 2006 regulates the spread of information in the Russian Federation and addresses misinformation. Part 6 of Art. 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 Art. 15.3, titled “Procedure for Restricting Access to Information Distributed in Violation of the Law”, states if that “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 must 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.”
In case of non-compliance with the above-stated federal law provisions, Article 13.15 of Code of Administrative Offenses of the Russian Federation, titled “Abuse of Media Freedom,” applies. 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 as of 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 Azarova D. E. of Magistrates’ Court No. 416 in the Presnensky District of Moscow, Russia, delivered the Court’s decision. The main issue before the Court was whether Ruvinsky as the editor-in-chief of the Echo of Moscow website was non-compliant with Federal Law No. 149-FZ for having allowed the spread of misinformation about and in the context of the COVID-19 pandemic.
Ruvinsky argued for the case to be dismissed, as the Echo of Moscow website had removed the interview upon receiving Roskomnadzor’s notice to do so. Ruvinsky maintained that the original text of the interview demonstrated that the political scientist’s statements constituted direct speech and represented a value judgment and opinion. Ruvinsky argued that due to the absence of official unified statistical information on the new coronavirus infection, individuals were allowed to express their assumptions, and he emphasized it had not been possible to verify the accuracy of the information in question.
Referring to the sanction measure under Part 9 of Art. 13.15. Code of Administrative Offenses, which would impose a considerable fine amount, Ruvinsky requested the Court to apply the provisions of Part 2.2 Art. 4.1 of the Code (“General Rules for Imposing an Administrative Penalty”) which allowed judges to impose fines lower than the minimal amount of the law provision under consideration if extraordinary circumstances took place within the case.
The Deputy Head of Roskomnadzor’s Department for Control and Supervision in the Sphere of Mass Communications for the Central Federal District, Ivlev E.A. appeared as Roskomnadzor’s representative. He supported the prosecution of Ruvinsky, maintaining that the interview with misleading statements regarding the new coronavirus infection, was published in the public domain for an unlimited number of people. Ivlev E.A. emphasized that as the interview had been published on the radio station’s website in the format of a transcript confirmed the presence of intent in Ruvinsky’s actions: the editor-in-chief could have fact-checked the interview statements and could have chosen not to proceed with publication.
Referring to the law provisions on the spread of misinformation, the Court defined “knowingly unreliable information” – the term that Federal Law No. 149-FZ uses – as “information that is objectively verifiable and can be refuted” [p. 2].
The Court cited Russian Government Decree No. 66 “On Amendments to the List of Diseases Dangerous to Others” dated January 31, 2020, which included coronavirus infection (2019-nCoV) into the list of diseases that were dangerous to others. The Court also cited the Supreme Court’s “Review of Certain Issues of Judicial Practice Related to the Application of Legislation and Measures to Counter the Spread of the New Coronavirus Infection (COVID-19),” which stated the COVID-19 infection circumstances posed a threat to the life and safety of citizens.
Accordingly, the Court held that the spread of “knowingly unreliable information” about COVID-19 created “a threat of harm to the life and/or health of citizens, the threat of mass disruption of public order and/or public security” [p. 3], as it might have led to the public’s panic and dissatisfaction with the measures that the authorities undertook to counter the spread of the infection.
The Court referred to the earlier hearing which had held that the interview with Solovey published on the Echo of Moscow website contained “knowingly unreliable socially significant information” about COVID-19, since it did not conform to the official records of Rospotrebnadzor, as of March 18, 2020 – records which were published after the interview itself was published. The Court stated that any information concerning the spread of the coronavirus, including that of the number of deaths, was “socially significant, which followed from the infection consequences and the measures taken to prevent the spread of the coronavirus throughout the Russian Federation.” Citing Art. 19 and Art. 26 of Law No. 2124-1 “On Mass Media” dated December 27, 1991, the Court stated the editorial office was headed by the editor-in-chief, who was responsible for following the law and approving media material prior to publication. The Court stressed that, according to Ruvinsky, the editorial office had proceeded with publication of the interview having not verified the information in it by referring to the official records available on the website of Rospotrebnadzor.
The Court rejected Ruvinsky’s argument that the journalist had tried to determine Solovey’s sources during the interview by citing Art. 49 of Law No. 2124-1, which stated a journalist was obliged to verify the information upon receiving it. Referring to Art. 51 of Law No. 2124-1, the Court emphasized that a journalist must not abuse their rights to spread “rumors under the guise of reliable messages” [p. 4]. The Court defined “the spread of rumors under the guise of reliable messages” as “dissemination of any, fully or partially falsified, information about facts and comments regarding them under the guise of real, verified, true information, creating the illusion of information reliability” [p. 4]. The Court stated that expressing one’s opinion or publishing one’s opinion did not release a journalist or editor-in-chief from their responsibility to preserve the values of the Constitution and not inflict “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” [p. 4].
In respect of the right to freedom of expression, the Court cited Art. 29 of the Constitution of the Russian Federation, which protects freedom of thought, freedom of speech, as well as media freedom. The Court emphasized the International Law provisions were an integral part of Russia’s legal system and referred to Part 1 of Art. 10 of the European Convention on Human Rights, stating everyone’s right to freely express their opinion. The Court, however, also cited Part 2 of Art. 10, stressing the corresponding responsibilities, restrictions, and sanctions. The Court emphasized that “the norm’s provisions must be interpreted in accordance with the legal position of the ECtHRs, expressed in its judgments” [p. 5].
The Court held that Ruvinsky had violated Part 6 of Art. 10 of Federal Law No. 149-FZ, and was guilty of committing an administrative offense under Part 9 of Art. 13.15 of Code of Administrative Offenses. The Court dismissed Ruvinsky’s request to impose a fine lower than the minimum amount as the case did not entail any extraordinary circumstances for that to take place. The Court imposed an administrative fine.
On July 3, 2020, Ruvinsky appealed the decision, and the Appellate Court – the Presnensky District Court of Moscow – upheld the First Instance Court’s decision on August 3, 2020.
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 the COVID-19 pandemic. According to the report from the International human rights group, Agora, even though Part 9 of Art. 13.15 titled “Abuse of the Media Freedom” of the Code of Administrative Offenses (the Code) was adopted in 2019, the law has become a governmental tool to control the spread of information “that differed from official press releases” since the start of the pandemic.
On the same day as this judgment, the Presnensky District Court of Moscow also upheld the First Instance Court’s decision that had found Echo of Moscow’s radio station guilty in respect of the airing of the same interview as in the present case and imposed a fine of 200 thousand rubles (around US$2900 at the time). And 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 US$822 at the time) – in addition to the fine of 200 thousand rubles (around US$2700 at the time) the newspaper was charged in a separate case. Roskomnadzor had compiled administrative protocols in response to the newspaper’s publication about quarantine measures on the nuclear submarines “Voronezh” and “Smolensk.”
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