Interview: Media Lawyer Says Russia's New Laws 'Are Burying Civil Society'

By Andrei Novashov

At the end of last year, Russia adopted a number of new legal measures that many observers say are intended to further restrict the country's already state-dominated media sphere. Among other things, the government has begun placing individuals on its list of "foreign-agent" media, subjecting them to potential fines or prison sentences. The government has also criminalized online defamation.

Russia's state media monitor, Roskomnadzor, this week drew up its first eight administrative protocols -- all of them targeting Radio Free Europe/Radio Liberty -- for allegedly violating the "foreign agents" law.

The protocols target four of RFE/RL's Russian-language projects -- its main service for Russia, Radio Svoboda; the Current Time television and digital network; and Siberia.Reality and Idel.Reality, two regional sites delivering local news and information to audiences in Siberia and the Volga-Urals region.

The Siberia Desk of RFE/RL's Russian Service spoke with lawyer Galina Arapova, head of the Voronezh-based Mass Media Defense Center, about the government's latest moves and what impact they could have on Russian civil society.

Arapova's center itself has been designated "a noncommercial organization carrying out the functions of a foreign agent" by the Russian government, a designation the center is appealing. The Mass Media Defense Center has provided legal defense assistance in numerous high-profile cases since its founding in 1996, including the cases of RFE/RL Russian Service correspondents Svetlana Prokopyeva and Tatyana Voltskaya. Arapova has won numerous Russian and international human rights awards.

RFE/RL: At the end of 2020, the Russian government adopted the law on individual foreign agents and recriminalized online defamation. What danger do these steps present to journalists and Internet users?

Galina Arapova: We need to recall the baggage with which we entered 2020 in order to understand the foundations of these innovations. In 2019, the government took steps to tighten accountability for "disrespecting the authorities" and disseminating "fake news." They had passed the law on the so-called sovereign Internet, and the so-called Yarovaya package (Editor's note: a group of amendments to Russia's anti-terrorism laws that expanded law enforcement powers, set new requirements for data collection and mandatory decryption, and restricted some religious proselytizing.).

Internet and cellular-network providers had begun saving metadata from all their users' exchanges. The period of total online monitoring had already begun. They didn't do this for themselves but to provide the information to intelligence agencies, which didn't even require a court order.

At the end of 2019, they passed the law on registering individual people as "foreign agents" and established the requirement that foreign media outlets designated as "foreign agents" create corporate entities in Russia.

In 2020, the COVID-19 pandemic hit and immediately Roskomnadzor warned journalists to avoid any "subjective" coverage of the coronavirus situation, and it began punishing distributors of "fake news" on this topic. They criminalized the dissemination of "fake news." By the middle of April, they had begun opening criminal cases, including one against Aleksandr Pichugin.

For two months they conducted a criminal investigation into RFE/RL Russian Service journalist Tatyana Voltskaya, but they declined to file a criminal case and just charged her with an administrative violation (Editor's Note: Voltskaya was investigated in connection with an interview she published with a doctor about the handling of the pandemic in St. Petersburg). She and her company were fined and we, of course, will appeal the case to the European Court of Human Rights. As we will Pichugin's conviction.

They opened rather a lot of criminal cases, but there weren't really that many convictions. I mention that because some laws are passed, but not actively enforced. Both the Yarovaya package and the law on "foreign media agents" were passed quite a while ago but remained dormant for a long time. On the other hand, the law on "fake news" began to be enforced immediately. Across the country law enforcement considered it a matter of honor to find and disarm spreaders of "fake news," not only among journalists but among bloggers and even medical workers and ordinary Internet users.

So, in late November and December we saw a literal fusillade of bills introducing new restrictions on journalists and civil society. Taken together with the existing practices, these will practically bury civil society, and journalists won't even be able to cover that.

They changed the laws so that journalists are forbidden from taking part in demonstrations or organizing them. While earlier, journalists would participate in one-person pickets in support of their colleagues who were being persecuted for their professional work – for instance, Igor Rudnikov from Kaliningrad, Svetlana Prokopyeva from Pskov, Abdulmumin Gadzhiyev from Makhachkala, and Ivan Safronov and Ivan Golunov from Moscow -- now they no longer can. They also can no longer call on their colleagues to protest, as Ilya Azar did. That would be considered "organizing a public protest," with all the attendant consequences.

There is also the problem in the new law of requiring journalists to wear distinguishing signs when they are covering public events. The signs will be worked out by Roskomnadzor, together with the Union of Journalists. They claim that this is necessary to ensure the security of journalists. But journalists already could show police their identification to prove that they are professional journalists carrying out their work, but this never prevented police from detaining them and loading them into police vans with other detainees. Sometimes police would detain journalists, drive them around in circles for a while, and then release them without writing up a report. Such tactics have been used to prevent them from covering events and documenting what was going on because there have been cases when journalists' photographs were used as proof of police violence against protesters.

RFE/RL: Then what is the point of the new signs?

Arapova: I think that "marked" journalists will be easier to pick out in a crowd and, when desired, easier to isolate. If there is no coverage, then there was no event, as they say. The Council of Europe, incidentally, after analyzing violations of the rights of journalists covering protests has said that, in many countries, distinguishing signs do not save journalists, but actually make them targets.

RFE/RL: Tell us about the law on criminalizing defamation.

Arapova: There has been a significant strengthening of the law on defamation – Criminal Code Article 128.1. Earlier, there were fines or compulsory public service, but now there are penalties of up to five years in prison. But probably the most significant change is that the definition of defamation includes not only the knowing dissemination of false information about a specific individual, but also such information about any "individually undetermined individuals." The same is true for "insulting." Defamation has always been specific and targeted, but now our lawmakers have smeared the boundaries of defamation to such an extent that people can be criminally prosecuted for criticizing anything or any group or organization. The desire to mute any criticism of the authorities has trumped any common sense or civilized legal standards.

RFE/RL: And there has been one more innovation -- tightening up the law on those who are designated "foreign agents."

Arapova: In October, Roskomnadzor ordered "foreign agent" media outlets to publish notes warning their readers. So far, no one is doing this, but I fear that very soon we will see disfiguring designs for publications in which immediately after the headline there must appear a 24-word warning in typeface twice as large as that used for the headline. Under the threat of high, debilitating fines, they will force outlets to mark all their content as that of a "foreign agent," which will put off their audiences. If media outlets do not insert this warning, they will be regularly fined and then blocked.

Now, concerning individuals who are designated "foreign agent" media. They have adopted restrictions that affect journalists, bloggers, and any active Internet users. Individuals can now be designated either "foreign agents" or "foreign-agent media." Yes -- individual media, which sort of sounds like "individual orchestra" to me. It sounds absurd and it is impossible to understand, but around New Year's they placed the first five individuals on the list of "foreign media foreign agents." They are three journalists associated with the "foreign agent" Radio Svoboda – Lyudmila Savitskaya, Sergei Markelov, and Denis Kamalyagin; one of the country's most prominent human rights activists, Lev Ponomaryov; and performance artist Darya Apakhonchich.

No one knows why these five, in particular, were selected for this honor, but apparently this is only the beginning. The authorities will so designate anyone that they think is involved in "political activity" and receiving foreign financing or even any organizational or other assistance from international organizations or foreign citizens.

The concept of "political activity" is extensively broad -- it includes any dissemination of information that could influence public opinion, any human rights activism, and much more. For instance, if some successful blogger who comments on sociopolitical topics and places his videos on YouTube and has monetized his content, then he is receiving money from a foreign source for the advertising on his channel. So that fits the definition of "foreign financing for the distribution of information to an unlimited number of people." The law could also cover young academics working on foreign grants or accepting a fellowship at a foreign academic institution. Or human rights activists accepting charitable contributions from international sources. In short, anyone who can be shown to receive foreign money and who says anything that the authorities do not like. The terms in the law are very, very broad, and they can be stretched to cover at least half the country.

The law is written in such a way that any person who thinks he is involved in "political activity" and who is receiving any foreign money must present himself to the authorities and request that they place him on the list of "foreign agents." I don't think this requirement is correct. For example, why should it be the case that a journalist writing for a foreign media outlet is carrying out "political" rather than "journalistic" activity? I think the government should bear the responsibility for designating journalistic work as "political activity." If the Justice Ministry wants to keep such a list, let them determine it themselves.

Those who fail to get themselves registered are threatened with a fine of 30,000 rubles ($410). But once they are registered, they run additional legal risks and could be fined anyway. Also, those who voluntarily register lose the right to appeal the designation. But if the Justice Ministry places you on the list, you can go to court. Of course, the chances that such an appeal would succeed in Russia are exactly zero. But it paves the way for an appeal to the European Court of Human Rights.

RFE/RL: Have the authorities been pressuring the lawyers who work for your center?

Arapova: The Mass Media Defense Center has been placed on the register of noncommercial organizations serving as "foreign agents" and you can see that designation on our website. We have been listed now for nearly six years, but we oppose it and believe that the formulation "foreign agent" was introduced to stigmatize something as hostile. Of course, this is absurd since we are working in the interests of Russian society.

We do not run for office. We do not do lobbying work. We do not work with or for any political parties. We only carry out human rights, legal-defense work, which our government for some reason considers to be "political activity."

We are appealing our inclusion on the list of "foreign agents," together with the other 70 organizations carrying out human rights work in Russia. It has already become a joke to say that inclusion on the government's list is a sign of quality. If you have achieved anything in the realm of human rights in Russia, if you work in a professional way, then you simply must be on that list. If you aren't there, it means no one is taking you seriously.