Federation Council, Russia. CC BY 2.0 / Wikimedia. Some rights reserved.On 22 November, Russia’s Federation Council approved new legislation designed to assign “foreign agent” status to foreign media organisations. Previously voted through by the Russian parliament, this new “foreign agents” law was received 154 votes, with one abstention. There’s no doubt that Vladimir Putin will soon sign the document into law. The question now is: how will this legislation, which was clearly written in a rush, be applied?
Forgetting for a moment the anti-constitutional nature of this legislation, you need to understand that its language completely destroys Russia’s whole system of media law. Article 1 of Russia’s current Law on Means of Mass Communication notes that a “media” is a form of periodically distributing information. The latest amendments introduce a new term (“foreign media”), though there’s no discussion of whether this refers to an organisation or “structure”, and there’s no further mention of the “periodical” element. For example, you want to sell your bike, so you put an ad up on eBay. You receive money from a distant relative in Uzbekistan, and that’s it — welcome to the black list. This lack of clarity on fundamental terms will destroy Russian media law. This couldn’t happen in a normal legislative environment. (That said, who are we kidding.)
In the case of Russia’s new media legislation, a lawyer clearly won’t be able to help you
The amendment’s careless formulations don’t meet the standard requirements for legislative acts as stated by the Russian Constitutional Court, or the European Court of Human Rights. Both of these institutions have stated on different occasions: the minimal criteria for legal definitions mean that a law should, first, conform to the principle of the rule of law, and second, be understandable to citizens who have to regulate their behaviour as a result. It should be clear to an ordinary, competent citizen what they might be punished for. In extreme cases, they should have the opportunity to gauge potential risks together with legal counsel. But in the case of Russia’s new media legislation, a lawyer clearly won’t be able to help you. I’m confident that, on the basis of the legislation alone, not a single specialist will be able to advise an editorial office how to act in order to avoid being branded a “foreign agent”.
The document states directly that the Russian Ministry of Justice can declare anyone who has any kind of relationship abroad and receives foreign financing a “foreign agent” (with all the unpleasant consequences that entails). An important detail here is that the Ministry can declare a media a “foreign agent”, but it doesn’t have to. In our globalised world (which Russia, despite everything, still belongs to), the Ministry can apply these criteria to whoever it pleases.
After years of accusations of propaganda against RT, a US TV company linked to RT has registered as a foreign agent in the US. (c) Jaap Arriens/SIPA USA/PA Images. All rights reserved.Russian propaganda often compares this legislation to the US Foreign Agents Registration Act (FARA), but this is absolutely incorrect. FARA has many shortcomings, it is also discriminatory and should be revoked — but this is a problem for US citizens. If they want it, then so be it. It’s worth remembering that only four media are registered as “foreign agents” in the US — two Japanese and Korean television networks, the China Daily newspaper and now RT. In Russia meanwhile, nine media organisations have already received warnings. There’s likely to be more, mostly to the detriment of Russian-language media and organisations suspected of connections to the US authorities. Russia has declared 160 NGOs “foreign agents” in the past five years, and 40 organisations have been liquidated as a result. The scales at stake here are incomparable.
This legislation will be applied in a targeted fashion in order to force independent media into silence — particularly foreign media with correspondents or partners in Russia
Despite FARA’s discriminatory nature (I believe limiting freedom of expression on the grounds of ownership should be considered discrimination), this legislation contains rather strict provision that defends independent media. Where “agents” are concerned, 80% of a given company, according to FARA, must belong to a foreign state. In the Russian version of the law, the amount of foreign financing doesn’t matter.
There’s no doubt that the Russian authorities won’t be able to apply this new media legislation en masse. Instead, this legislation will be applied in a targeted fashion in order to force independent media into silence — particularly foreign media with correspondents or partners in Russia. Indeed, this is what’s in the Ministry of Justice’s proscription list: they will pressure the media they don’t like, the media that criticise them and the media who are independent.
The main target, then, is foreign media who broadcast, write and publish in Russian. And the number of these media is only increasing. Unable to find ways to pressure foreign editorial offices, the Russian authorities will, most likely, focus on blocking websites, broadcasts and persecuting these media’s Russian correspondents. Journalists will have their accreditation refused, public officials will be banned from granting them information. The police and other state representatives will stop treating journalists as journalists, which means no immunity at work — for example, at public rallies or in conflict zones. Head offices will find it harder to receive payments and pay their Russian partners and offices.
It’s telling that Russia’s Ministry of Justice started sending out warning letters to “undesirable” media a month ago — that is, before the law came into effect. The Ministry did not have the right to do this. The legislation states that the Ministry will develop and confirm rules for declaring media “foreign agents” — but the legislation was neither law, nor had the Ministry developed its rules.
Still, the names of “harmful” media are already known, and the operation has begun. As one editor-in-chief often says: “It will only get worse.”