Russia’s new media law: expanding the field of uncertainty; Russia’s new legislation is not only aimed at foreign media. It’s another step in the process of blurring legal definitions – until they’re useless.

(opendemocracy.net – Sergey Lukashevsky – November 29, 2017)

Sergey Lukashevsky is the director of the Sakharov Center, Moscow.

The Russian state currently lives for two problems – its relations with the US, and the upcoming presidential elections. Society is worried about something slightly different – the state of the healthcare system, rising taxes and reducing incomes. But it’s the authorities who set the priorities in Russia, and they don’t often consult citizens.

If you ask Google News, then Russian websites devoted 167,000 articles to the recently announced “tax on modernisation”, and for the recent legislation on foreign media – 223,000. With fresh controls on the media landscape, the Russian authorities are successfully manipulating the news agenda.

Indeed, the Russian parliament is working hard, having stamped out a response to the US registration of an RT production company as a “foreign agent” in record time. America’s Foreign Agent Registration Act (FARA) is clear: if an organisation carries out PR for a foreign state or company, then it should be registered as a lobbyist. There’s a “principal”, and then there’s its “agent” in the United States.

It would seem Russia’s legislation mirrors FARA. Voice of America and Radio Liberty have already been warned that they are candidates for Russia’s foreign agent register. RT is funded from the Russian state budget, and VOA and RFE/RL – the US budget. However, Russia’s new media legislation follows quite a different logic – the blurring of legal definitions.

First, the new concept of “foreign media agents” is only half the law. The other half, as is often the case in Russian legislation, was hidden in the shadow of the headlines. The new legislation expands the right of the Prosecutor’s Office to block websites without court decisions. Previously, the legislation stated the following reasons as potential reasons for blocking: “calls for mass unrest, conducting extremist activity, participating in mass public events that break legislation governing such events.” But now the language becomes really slippery: the amendments state that “distributed information that violates the law” can be blocked. The fate of any website will thus be completely dependent on how Russian prosecutors interpret the entirety of Russian legislation. For example, a news website posts a video by a blogger who has been charged with “insulting religious believers’ feelings”, and his site is blocked. After all, the prosecutor’s office has already decided that the video in question insults “feelings”. This means that, even if a court hasn’t made a decision on whether the given video is offensive, the video becomes “distributed information that violates the law”.

Second, the grounds for declaring a media organisation a “foreign agent” are copied from Russia’s 2012 NGO law. This law does not contain the concept of a “principal”, e.g. not just a foreign government, but a political party, person or organisation. Evidence of having conducted specific PR or government relations work is not required. It’s enough to receive a dollar as a result of a transaction that crosses the Russian border. Accordingly, any media that has an advertising contract with a foreign company can be declared a “foreign agent” if its output doesn’t suit the Russian authorities.

This situation suggests that the legislation will be applied on an extremely selective basis – and this was confirmed by Russian senator Andrey Klishas: “We are giving the Justice Ministry the concept and the legal power: given the current political situation, if you think it is necessary to mark a media organisation as such [as a foreign agent], then you can do this.”

If we take a step back from the specifics for a moment, then this legislation is one more step in the process of washing out legal definitions and logic. The Russian authorities are simply extending the field of arbitrary rule. Their powers are not only becoming ever broader, but less regulated. What seems like an almost comic game at one-up-manship is, in fact, a demonstration of how Russia’s political regime is evolving. The rise of willpower as the guiding force in Russia does not only mean rising repression, but rising uncertainty. This is why unpredictability and selective application, rather than cruelty or mass repression, are the main instruments of 21st century Russian authoritarianism.

Plans to introduce the concept of “undesirable behaviour” into Russian legislation are similar in this regard. Andrei Klimov, chairman of the Federation Council’s commission on defending state sovereignty, mentioned this novel concept recently. In effect, the idea is to extend Russia’s 2015 legislation on “undesirable organisations”, which prevents such organisations from distributing information or operating in Russia, to individuals. Foreign citizens who are accused (naturally, without a court decision) of “undesirable behaviour” are likely to face deportation, Russian citizens – prison time.

The details of this future legislation are still unclear – Russian citizens can already be fined or sentenced to prison for cooperating with “undesirable organisations”. Moreover, Article 275 of Russia’s Criminal Code (State treason) can be used to punish not only for passing classified information or intelligence work, but “providing consultancy or other aid to a foreign state, international or foreign organisation, or their representatives, regarding actions directed against the security of the Russian Federation. Thus, there is already legislation in force that makes discussing the social and political situation in Russia with a foreign citizen a potential form of “consultancy” which threatens the security of the country. Since 2013, Article 275 has been used to prosecute six women in Krasnodar region for sending SMS messages to friends and family over the border in Georgia during the August 2008 war. At this stage, the use of treason legislation against human rights defenders and civic activists doesn’t seem impossible.

However, these new repressive concepts and laws are being initiated for two reasons. First, to demonstrate zeal in the defence of the “homeland and the crown” ahead of the presidential elections in March 2018. In his statement, Klimov specifically mentioned certain “evidence of potential interference in the Russian electoral process”, and “evidence of potential interference” is close to “links leading to suspicion of espionage”, the language used in the Soviet Union’s “counter-revolutionary” Article 58.

Second, to introduce new relatively minor offences and punishment tariffs that will reduce the cost of repression. Belarus has already long travelled this road – the state has reduced the number of political prisoners, actively limiting freedom (for instance, via house arrest) instead of prison sentences. Accusing a civic activist of state treason (minimum tariff: 12 years) attracts a lot of attention, which inevitably leads to bad press, protest campaigns, unpleasant questions and statements from diplomats. Punishing someone for “undesirable behaviour” via a fine, arrest and even a one- or two-year prison sentence carries a lot less risk.

All the above-mentioned current and draft legislation fit into the logic of defending the Russian regime. The third recent piece of headline-catching legislation, the bill on creating a “Constitutional Assembly” from Vladimir Bortko, a film director and Communist Party parliamentary deputy, is of a different bent altogether. In the current political reality, Russia’s 1993 Constitution (well, at least its second chapter on democracy and human rights) looks almost shamefully out of place. But the regime has decided not to change the Constitution, to my mind, for two reasons.

First, the process of changing it promises to be a period of political turbulence even more intense than elections. Every minor political actor will want to contribute, and seek to lobby all sorts of exotic ideological language into the new document. For instance, Vladimir Bortko also proposed changing the constitution’s opening line of “We, the multinational people of the Russian Federation” to “the Russian nation and nations of the Russian Federation”. You can just imagine the reaction of the leaders of Chechnya or Tatarstan and the discussion that follows.

Second, nationalists, communists and all other supporters of “illiberal” values in Russia lack their own philosophy of law. There simply isn’t an applicable alternative when it comes to an idea of how Russian legislation should look. The “constitutions” of the “People’s Republics” in Donetsk and Luhansk shocked me in the sense that, despite the logic behind the emergence of these entities, these documents still contained all the usual liberal principles (the rule of law, human rights and freedoms as guiding values).

For a long time, there have been no institutional barriers to repression and destruction of the last remaining freedoms in Russia. The speed at which the regime follows this path is restrained only by the regime’s absolute lack of creativity – they have no ideas about how to build an economy or legal system. The Russian authorities’ frequent claims to having their own political philosophy a la Joseph De Maistre (for the well-read) or Ivan Ilyin (for those who study philosophy according to president Putin’s speeches) actually reflect a lack of real strategy across the board. Russia lives according to the logic of political reaction and conservatism. Without any positive path for the future. And this applies both those who reject the current regime, and those who sincerely (and insincerely) support it.

The political analysts predict that, closer to 2024, Russia’s Constitution could, indeed, be changed. After the annexation of Crimea, we can hardly talk about any course of action as “impossible”. But amending the Russian Constitution will be a special operation, and it will start exactly when nobody’s expecting it – and it’s unlikely that a parliamentary deputy from the loyal opposition will be allowed to participate.

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