In the public interest
IRIS Extra 2015-1: Regulation of online content in the Russian Federation
Author: Andrei Richter (Lomonosov Moscow State University, Faculty of Journalism) and Anya Richter (University of Pennsylvania, School of Law)
Freedom of expression and the limitations thereto have been in the spotlight of European legislators and courts for decades, with trends going in various directions. This right forms one of the main pillars of democratic societies, enshrined in constitutions and international charters and conventions, so it is quite natural that discussion on its restrictions would attract intense attention. Such restrictions are of course allowed under specific circumstances, provided that balancing with other rights makes them legitimate and that the right of fair trial is ensured.
In this context, this analysis of the most recent developments in the Russian Federation by Andrei Richter and Anja Richter deserves particular attention. The authors show how the regulatory, supervisory and sanctioning frameworks have gradually evolved into something quite different from what seemed to be their original purpose, by pointing out the stratification of laws, amendments, interpretative resolutions, court decisions which have amassed over the years since 1991, when the Mass Media Law was adopted in order to eliminate censorship, create private mass media and establish specific rights for journalists.
As long as the Internet was accessed by a limited part of the Russian population – only 2% in 2000 – online content was not included in the scope of content regulation. Things changed when this percentage started to increase (it reached 64% in 2014) and public institutions felt the need to intervene “in order to improve legal regulation in the sphere of mass information”. In 2011, with the adoption of a new Statute that provided for a systematic regulation of online content, a registration procedure was introduced for website owners and the monitoring agency Roskomnadzor was given corresponding competencies. Its role in the field of site-blocking increased significantly in a very short time: in the beginning it was about fighting against the spread of extremist speech, but it has gradually expanded to censor swear words, obscene language and adult content.
With punctual references to the Russian Supreme Court’s interpretative resolutions and legal acts and with very clear descriptions of the various administrative procedures that might lead to the inclusion of a website on Roskomnadzor’s blacklist, the Richters take advantage of their rare access to sources that are mostly available in Russianonly.. They also provide an overview of the reactions of civil society to the progressively increasing number of blocking procedures of entire websites, including cases where the allegedly illegal content has been limited and clearly identifiable.
Some of the orders issued by Roskomnadzor have indeed been challenged. To give a preview of the variety of outcomes, in a case filed by Google concerning a video posted on YouTube showing a girl using make-up to create the appearance of cut veins, the Moscow Arbitration Court sided with Roskomnadzor in the qualification of this material as suicide information and the video was removed. In a case of use of obscene language in materials posted by the news agency Rosbalt on the Pussy Riot band, after the negative decision by the Moscow City Court, the Supreme Court reviewed the Roskomnadzor decision and declared it disproportionate, and thus void, because it disregarded the context.
Considering the global nature of the Internet, this Russian story gives plenty of material for further reflection. One might wonder how far it is possible and legitimate to proceed on a purely national level, how far a global standard-setting procedure on legitimate restrictions to freedom of speech might go and if this matter might be rather left to self-regulatory codes, provided that they respect a minimum set of requirements, as is the case for the activities run by the Internet Governance Forum.
What is clear is how vulnerable freedom of expression risks being on the Internet, both because of over-ruling, so that free speech almost disappears, and of under-ruling, that allows almost anything in the name of free speech. Even universal freedoms admit limitations. The question is where to draw the line when exceptions tend to become the rule.