Abstract
This chapter compares the Russian national legislation on online freedom of expression with the Council of Europe’s (CoE) legal standards to investigate the extent to which the Russian legislation has been consistent with the CoE vision. The chapter first examines the CoE perspective on online freedom of expression and media freedom, including the European Court of Human Rights case law and non-binding documents of the other main CoE institutions, and then analyses the Russian national legal framework for online content. The chapter looks beyond legal studies debates and outlines the issue from historical and political perspectives to explore the real meaning of online freedom of expression in Russia. The chapter concludes that Russian and CoE visions are conceptually different and that Russian regulations are closer to the USSR speech policies than to the CoE standards. It also suggests that Internet companies and international organisations should drive a revision of the Russian Internet law.
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Notes
- 1.
Report of the UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, A/HRC/35/22, 35th session of the UN Human Rights Council, 30 March 2017; http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/35/22. Accessed 10 October 2018.
- 2.
In the period 2011–2014, the Freedom on the Net reports characterised the Russian Internet as “partly free”.
- 3.
See, for instance, Postojannoe Predstavitel’stvo Rossijskoj Federacii pri Otdelenii OON i Drugih Mezhdunarodnyh Organizacijah v Zheneve [Permanent Mission of the Russian Federation to the United Nations and Other International Organizations]. Informacija Rossijskoj Federacii v Svjazi s Zaprosom Special’nogo Dokladchika Soveta OON po Pravam Cheloveka po Voprosu o SvobodeVyrazhenija Mnenija [Information of the Russian Federation in Connection to the Request of the Special Rapporteur of the UN Human Rights Council on the Promotion and Protection of the Right to Freedom of Opinion and Expression]. No. 660, of 3 November 2016; http://www.ohchr.org/Documents/Issues/Expression/Telecommunications/Russia.pdf. Accessed 10 October 2018.
- 4.
The Council of Europe (CoE) was founded in 1949 and, currently, it unites 47 members. For more information, see http://www.coe.int/en/web/portal/home
- 5.
Convention for the Protection of Human Rights and Fundamental Freedoms (or European Convention on Human Rights, ECHR), adopted in Rome on 4 November 1950; http://www.echr.coe.int/Documents/Convention_ENG.pdf. Accessed 10 October 2018.
- 6.
Article 10 Part 1 of the ECHR reads: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises”.
- 7.
They are the 1948 Universal Declaration of Human Rights (UDHR), Article 19, and the 1966 International Covenant on Civil and Political Rights (ICCPR), Article 19, Parts 1–2.
- 8.
Article 10 of the ECHR in Part 2 states: “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation of the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”.
- 9.
ICCPR in Article 19 Part 3 says: “The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order, or of public health or morals”.
- 10.
See, for instance, UN Human Rights Council Resolution “On Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development”, A/HRC/32/L.20, 32nd session, 27 June 2016; https://www.article19.org/data/files/Internet_Statement_Adopted.pdf. Accessed 10 October 2018.
- 11.
See, for instance, the cases of Ahmet Yildirim v. Turkey of 18 December 2012, Editorial Board of Pravoye Delo and Shtekel v. Ukraine of 5 May 2011 and Renaud v. France of 25 February 2010.
- 12.
UN Human Rights Committee, General Comment No. 34 on Article 19 of the ICCPR, adopted at its 102nd session, 11–29 July 2011; http://www2.ohchr.org/english/bodies/hrc/docs/GC34.pdf. Accessed 10 October 2018.
- 13.
See, for instance, the ECtHR judgements on the cases of Editorial Board of Pravoye Delo and Shtekel v. Ukraine and Wegrzynowski and Smolczewski v. Poland of 16 July 2013.
- 14.
Resolution of the UN General Assembly, “Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development”, adopted on 27 June 2016, at the 32nd session of the UN Human Rights Council, A/HRC/32/L.20; https://www.article19.org/data/files/Internet_Statement_Adopted.pdf. Accessed 10 October 2018.
- 15.
Ahmet Yildirim v. Turkey.
- 16.
See, for instance, Recommendation CM/Rec(2016)5[1] of the CoE’s Committee of Ministers to Member States “On Internet Freedom”, adopted on 13 April 2016 at the 1253rd meeting of the Ministers’ Deputies; https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=09000016806415fa. Accessed 10 October 2018; Recommendation CM/Rec(2016)1 of the CoE Committee of Ministers to Member States “On Protecting and Promoting the Right to Freedom of Expression and the Right to Private Life with Regard to Network Neutrality”, adopted on 13 January 2016, at the 1244th meeting of the Ministers’ Deputies; https://wcd.coe.int/ViewDoc.jsp?p=&Ref=CM/Rec(2016)1&Language=lanEnglish&Ver=original&BackColorInternet=C3C3C3&BackColorIntranet=EDB021&BackColorLogged=F5D383&direct=true. Accessed 6 November 2017; Recommendation CM/Rec(2015)6 of the Committee of Ministers to Member-States “On the Free, Transboundary Flow of Information on the Internet”; https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=09000016805c3f20. Accessed 10 October 2018.
- 17.
Ibid.
- 18.
Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression (2015), UN Doc, A/HRC/29/32, 22 May; http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session29/Documents/A.HRC.29.32_AEV.doc. Accessed 10 October 2018.
- 19.
Declaration “On Freedom of Communication on the Internet”, adopted by the CoE’s Committee of Ministerson 28 May 2003 at the 840th meeting of the Ministers’ Deputies; https://www.osce.org/fom/31507. Accessed 10 October 2018.
- 20.
Ibid.
- 21.
See, for instance, the cases of Renaud v. France and Aleksey Ovchinnikov v. Russia of 16 December 2010.
- 22.
Times Newspapers Ltd v. the United Kingdom (No. 1 and 2) of 10 June 2009, Ahmet Yildirim v. Turkey and Mouvement Raélien Suisse v. Switzerland of 13 January 2011.
- 23.
See, for instance, the Recommendation of the CoE’s Committee of Ministers “On the Protection and Promotion of the Universality, Integrity, and Openness of the Internet” which states that the Internet “provides essential tools for participation and deliberation in political and other activities of public interest”.
- 24.
Declaration “On Freedom of Communication on the Internet” and Recommendation CM/Rec(2015)6 “On the Free, Transboundary Flow of Information on the Internet”.
- 25.
Recommendation CM/Rec(2011)7 of the CoE’s Committee of Ministers to Member States, “On a New Notion of Media”, adopted on 21 September 2011 at the 1121st meeting of the Ministers’ Deputies; https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=09000016805cc2c0. Accessed 10 October 2018.
- 26.
Telegraaf Media Nederland Landelijke Media B.V. and Others v. the Netherlands.
- 27.
Ibid.
- 28.
Rolf Anders Daniel Pihl v. Sweden of 9 March 2017 and MTE-Index v. Hungary of 2 February 2016.
- 29.
Delfi AS v. Estonia of 16 June 2015, Rolf Anders Daniel Pihl v. Sweden and MTE-Index v. Hungary.
- 30.
Statute of the USSR “On Press and Other Mass Media”, No. 1552-1, adopted by the Supreme Soviet of the USSR on 12 June 1990; http://pravo.gov.ru/proxy/ips/?docbody=&nd=102010233&rdk=&backlink=1. Accessed 10 October 2018.
- 31.
Statute of the Russian Federation “On Mass Media”, No. 2124-1 of 27 December 1991; http://www.consultant.ru/document/cons_doc_LAW_1511/. Accessed 10 October 2018.
- 32.
Article 1 of the statute “On Mass Media” defines the freedom of mass information as a set of the following rights: (1) to seek, receive, produce and disseminate mass information; (2) to establish mass media outlets, to own, use and dispose of them; and (3) to make, acquire, keep and employ technical facilities and raw and other materials meant for the production and distribution of mass media content.
- 33.
Article 29 of the Russian Constitution states that:
“1. Everyone is guaranteed the freedom of thought and speech.
2. Propaganda or agitation exciting social, racial, national, or religious hatred and strife is not permitted. Propaganda of social, racial, national, religious, or linguistic superiority is banned.
3. No one may be compelled to express his or her opinions and convictions or to renounce them.
4. Everyone has the right to freely seek, receive, pass on, produce, and disseminate information by any lawful means. A list of information comprising state secrets is determined by federal law.
5. The freedom of mass information is guaranteed. Censorship is banned”.
- 34.
The Russian Constitution states in Article 55(3) that the right to freedom of speech could be limited only by federal laws, and “to such an extent to which it is necessary for the protection of the fundamental principles of the constitutional system, of morality, health, the rights and lawful interests of other people, and for ensuring the defence and the security of the State”.
- 35.
Doctrine on Information Safety. Adopted by the Decree of the President of the Russian Federation on 9 September 2000 No PR-1895.
- 36.
Federal Statute “On Information, Information Technologies, and Protection of Information”, No. 149-FZ of 27 July 2006.
- 37.
“On Amendments to the Federal Statute on Protection of Morals from Information Harmful to Their Health and Development, and to Some Legal Acts of the Russian Federation”, No. 139-FZ.
- 38.
As the Norton Cybercrime Report (Norton, 2012) shows, 92% of Russians suffered from the violations of their rights, especially on social media platforms. Russian users complained they had lacked protection from phishing attacks, cracking of accounts and receiving spam as well as obscene content.
- 39.
Convention on Cybercrime, Budapest, 23 November 2001; https://www.coe.int/en/web/conventions/full-list/-/conventions/rms/0900001680081561. Accessed 10 October 2018.
- 40.
Chart of signatures and ratifications of Treaty 185, Convention on Cybercrime, Status as of 3 February 2017; https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/185/signatures?p_auth=iKp4JDIL. Accessed 10 October 2018.
- 41.
Doctrine on Information Safety. Adopted by the Decree of the President of the Russian Federation on 5 December 2016 No. 646.
- 42.
Federal Statute of the Russian Federation “On Amending the Federal Statute of the Russian Federation, on Communication, and the Federal Statute, on Information, Information Technologies, and Protection of Information”, No. 90-FZ of 01 May 2019.
- 43.
Resolution of the Constitutional Court of the Russian Federation “On the Case of the Constitutionality Test of Paragraphs 1, 5, and 6 of Article 152 of the Civil Code of the Russian Federation, in Response to the Complaint of the Citizen Y. Krylov”, Saint Petersburg, 9 July 2013.
- 44.
Federal Statute of the Russian Federation “On Amending the Federal Statute of the Russian Federation, on Counteraction of Terrorism, and Other Legal Acts of the Russian Federation in the Parts Establishing Additional Measures to Counteract Terrorism and Ensure Public Safety”, No. 374-FZ; Federal Statute of the Russian Federation “On Amending the Criminal Code of the Russian Federation and the Criminal Procedure Code of the Russian Federation in the Parts Establishing Additional Measures to Counteract Terrorism and Ensure Public Safety”, No. 375-FZ of 6 July 2016.
- 45.
Federal Statute of the Russian Federation “On Amending Articles 10.1 and 15.4 of the Federal Statute on Information, Information Technologies, and Protection of Information”, No. 241-FZ of 29 July 2017.
- 46.
See Edward Snowden’s Twitter account at https://twitter.com/snowden?lang=ru. Accessed 10 October 2018.
- 47.
See, for instance, the Declaration of the CoE’s Committee of Ministers “On Freedom of Communication on the Internet” and Recommendation CM/Rec (2011)7 of the CoE’s Committee of Ministers to Member-States “On a New Notion of Media”.
- 48.
Federal Statute of the Russian Federation “On Amending the Federal Statue on Information, Information Technologies, and Protection of Information”, No. 241-FZ of 29 July 2017.
- 49.
Federal Statute of the Russian Federation “On Amending the Federal Statute on Information, Information Technologies, and the Code of Administrative Offences”, No. 208-FZ23 of June 2016.
- 50.
Federal Statute of the Russian Federation “On Amending the Federal Statute on Information, Information Technologies, and Protection of Information”, No. 276-FZ of 29 July 2017.
- 51.
Federal Statute of the Russian Federation “On Amending the Code of the Russian Federation on Administrative Offenses”, No. 396-FZ of 20 December 2017.
- 52.
Regulations of the Government of the Russian Federation “On Amending Some Acts of the Government of the Russian Federation Due to the Adoption of the Federal Statute, on Amending the Federal Statute on Information, Information Technologies and Protection of Information, as well as Some Legislative Acts of the Russian Federation Concerning the Issues of Exchange of Information with the Usage of Information and Telecommunication Networks” of 31 July 2014, No. 758, Moscow.
- 53.
Federal Statute of the Russian Federation “On Amending the Federal Statute on Information, Information Technologies, and the Code of Administrative Offences”, No. 208-FZ23 of June 2016.
- 54.
Regulations of the Government of the Russian Federation “On United Automatized Information System, the United Register of Domain Names, Website Addresses on the Information and Telecommunication Network, Internet, as well as Net Addresses Allowing the Identification of Website Addresses on the Information and Telecommunication Network, Internet That Contain Information the Dissemination of Which Is Banned in Russia” of 26 October 2012, No. 1101, Moscow.
- 55.
Resolution of the Constitutional Court of the Russian Federation “On the Admissibility of the Complaint of the Foreign Organization Watchtower Bible and Tract Society of New York, Inc., Complaining About the Violation of Its Constitutional Rights by Article 1, Paragraph 3, and Article 13 of the Federal Statute of the Russian Federation ‘On Counteraction of Extremism Activity’” of 17 February 2015 as well as Article 15.1, Paragraph 2, Part 5, of the Federal Statute of the Russian Federation “On Information, Information Technologies and Protection of Information” of 22 December 2015.
- 56.
The decree of the Plenum of the Supreme Court of the Russian Federation, “On the Practice of Application of the Statute of the Russian Federation, on Mass Media, by Courts” of 15 June 2010.
- 57.
Federal Statute of the Russian Federation “On Amending the Federal Statute on Information, Information Technologies, and Protection of Information, and Articles 29 and 402 of the Code of Civil Procedure”, No. 264-FZ of 13 July 2015.
- 58.
Federal Statute of the Russian Federation “On Amending Some Legal Acts of the Russian Federation for Specifying Order of Personal Data Processing in Information and Telecommunication Networks”, No. 242-FZ of 21 July 2014.
- 59.
Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data. ETS No. 108, adopted on 28 January 1981; http://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/108. Accessed 10 October 2018.
- 60.
Roskomsvoboda (2019); https://reestr.rublacklist.net/visual/. Accessed on 9 June 2019.
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Sherstoboeva, E. (2020). Regulation of Online Freedom of Expression in Russia in the Context of the Council of Europe Standards. In: Davydov, S. (eds) Internet in Russia. Societies and Political Orders in Transition. Springer, Cham. https://doi.org/10.1007/978-3-030-33016-3_5
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