It’s a pleasure to submit comments on the media law drafts. I benefited very much from the conference that you helped conduct at the House of Journalists and from the various meetings we held in Moscow. I can summarize my comments here. I am attaching some detailed comments prepared together with Douglas Griffin, Esq.

First, I wish to say how important the existing Mass Media law has been in the transition from the Soviet period to what might be called the first post-Soviet period. The law was in place during the vast transitions that had to occur. Now, however, a new environment might call for very different approaches. The statute would be less aspirational and more practical. It would be easier to administer, more supportive of pluralism by making entry into the press and the broadcast sector easier, less expensive and less subject to government interference.

Some examples of specific problems with the two major drafts are as follows:

Other more specific comments are attached.

Monroe E. Price

These comments are designed to point out and briefly discuss a number of the most significant differences between (i) the draft federal law on mass media of the Russian Federation submitted by Fedotov as an update to the December 27, 1991 media law (the “Fedotov Draft”); and (ii) the draft circulated by the Industrial Committee dated December 10, 2002 (the “IC Draft”). They also discuss a number of general issues raised in light of both drafts. Provisions in the Fedotov Draft that are substantially similar to those in the IC Draft will not be discussed in this document. The comments to the IC Draft should be consulted for recommendations regarding those provisions.

Articles 18 through 22 and Article 43 of the Fedotov Draft detail the relative functions and rights of “owners,” “founders,” “publishers,” “editors-in-chief” and “organizations,” as well as required terms for agreements regarding the establishment and operation of media companies. Such specific provisions could overly burden and restrict media operations. They seem to be overly concerned with the formal status of the different parties, and their utility should be explored. Many of these issues may be more appropriately regulated by private professional organizations or may be better determined privately between the relevant parties.

Similarly, the regulation in Article 41 of the organization and operations of companies conducting “mass media communications audits” should be reviewed to determine if such regulation is necessary or would be more appropriate for a private professional organization.

Articles 26 through 33 attempt to establish a framework for publicly-funded broadcasting. Before establishing such a regulatory structure, it may be a good idea to examine some broader issues, such as the practicality of including these issues in the mass media law and the overall public broadcasting goals in Russia.

Generally speaking, the Fedotov Draft appears to be overly concerned with providing protections for certain types of organizations and individuals (such as those who fit into the definitions of “owner” or “journalist”) rather than protecting speech broadly in mass media.

For example, all of the protected activities listed in the first part of Article 1 relate to ownership, dissemination, and foundation of mass media and not speech. Article 69 sets forth the types of individuals who have the “special status” of journalists. In Article 2, the definition of “journalist” is limited to those who work for an “organization issuing registered mass media” (which is defined as the owners of mass media) and requires that journalists have employment agreements with such organizations, thus excluding free-lance journalists. In addition, the prohibition on state censorship protects only the “founders, owners, publishers, distributors, TV and radio broadcasting organizations, and printing enterprises” (all of which seem from their definitions to be the organizations that own the media or are closely related to the owners), rather than also providing such protections for the speech of editors and journalists.

It would be preferable if Russia’s media laws focused on protecting all speech published or broadcast over mass media rather than protecting only certain positions or organizations (such as “journalists” or “owners”). All provisions defining status formalistically and categorically setting forth various rights and responsibilities based on status should be reviewed to determine if they extend free speech rights broadly.

Like the IC Draft, the Fedotov Draft grants a number of free expression rights that are vague and provide no means of enforcement. For example, Article 1 provides the rights to “plurality of mass media” without explaining how such rights can be enforced. In addition, Article 64 states that “while conducting lawful professional activities, journalists shall have the right to undertake justified risk of infringing the interests protected by the criminal law with the objective to achieve goals useful to the society.” Although this language is clearly designed to protect the activities of journalists, it is vague, conditional, and speaks of criminal penalties for actions taken as a journalist. Such empty rights make the law confusing and provide little protection.

Several provisions in the Fedotov Draft attempt to provide clarification regarding enforcement of rights that was missing in the IC Draft. For instance, Article 77 provides that if the government or public associations take certain actions that infringe on the freedom of mass communication, such actions will result in “criminal, administrative, disciplinary or any other responsibility in accordance with the legislation of the Russian Federation,” whereas the IC Draft did not provide even this brief discussion of remedy. In addition, Article 80 speaks generally of a right of appeal for the infringement of journalistic rights, and provides for damages in the event that such an appeal is successful, where the IC Draft made no mention of such rights. However, these provisions do not provide sufficient clarity: Article 77 fails to spell out the specific remedies and procedures for enforcement of particular rights, and Article 80 fails to provide journalists with an offensive (rather than merely defensive) means to bring an action to enforce their rights.

Generally speaking, all rights granted should be clearly defined, establish how they may be enforced, provide for a private right of action, and set forth specific remedies, which should include injunctive relief and damages as appropriate.

Similar clarity is necessary for duties and responsibilities as well. The law should state the penalties that will apply to each violation of the law. Discretion by government officials must be limited and well-defined so that it cannot be abused, and all decisions must be able to be appealed in court.

As discussed in comments to the IC Draft, it may be worth considering whether the attention that both drafts pay to the creation of journalistic rights and duties may actually serve to burden free speech. It may be better to guarantee free speech to all citizens and not only journalists, particularly given the limited definition of “journalist” in each draft.

Article 1 provides that “the freedom of mass communication” can be restricted as specified in the Federal Constitutional Law dated by May, 30, 2001 №3-FKZ “On the State of Emergency.” This law should be reviewed to determine whether the restrictions in it meet the standard set forth in international law, i.e., speech is restricted only where necessary to serve a legitimate interest. Generally speaking, such restrictions to protect national security should be allowed only where there is a significant risk of imminent harm; the risk is of serious harm, such as violence; there is a direct causal link between the risk of harm and the expression; and the expression was made with the intention of causing the harm.

The prohibition in Article 5 on ownership of mass media that has an audience comprising 30% of the mass media audience could be problematic. It could be read to prevent publication by mass media that attracts a large audience even where the mass media provider has no monopolistic control over the media. This provision should be reviewed to ensure that its interest in addressing monopoly issues do not burden speech. Articles 39 and 40, which also concern monopoly issues, should be reviewed as well.

Article 25 provides that the rules for printed periodical publications will apply to “network mass media,” which includes communication over the Internet, and that broadcasting licensing requirements will apply to communication of television and radio programming over the “network mass media.” This seems overly simplistic and fails to take into account the unique qualities of the Internet.

Article 48 allows licenses to “include the responsibility to provide time…for broadcasting of audiovisual products of the following description:

Assuming that these represent upper limits for minimum requirements, they add up to 80% and thus seem extremely high. It may be advisable to establish a lower percentage. It also may be more appropriate to vary such percentage for each type of content, allowing a higher minimum for easily and inexpensively produced items and a lower minimum for more expensive productions.

Article 63 provides for a right to answer. The translation is confusing, but this provision appears to require a mass media organization to respond to accusations by private citizens. This provision should be reviewed, as compelled speech runs counter to the concept of free expression.

Article 74 sets forth special requirements for television broadcasting that reaches across the Russian border, including content requirements such as “fairly representing facts and comments.” It is unclear why special content restrictions are necessary for cross border broadcasting, and this provision should be reconsidered.

It also may be worth considering whether it is necessary to legislate the more detailed aspects of broadcasting and licensing, or whether, in Russia, such detailed regulation could be accomplished more comprehensively by the broadcast licensing agency itself with the oversight of the Russian legislature and the input of private organizations.

One cosmetic point: the cross-references in the translation of the Fedotov Draft are confusing. For example, sections often refer to the “first part” or “third part” of another section. These references should be clarified to avoid confusion and misinterpretation.

Following are comments on the draft federal law on mass media of the Russian Federation circulated by the Industrial Committee dated December 10, 2002 (the “IC Draft”).

The IC Draft does not clearly refer to the human rights treaties to which Russia is a party, namely the Universal Declaration of Human Rights and the European Convention on Human Rights. Although Article 3 states that, in case of conflict between the IC Draft and international agreements to which Russia is a party, the international treaties will take precedence, it does not refer to the treaties by name or the human rights obligations regarding free expression contained in them. It may be advisable to modify the IC Draft to include specific references to the free expression rights in both treaties in order to highlight Russia’s obligations under them.

The IC Draft places a number of content-based restrictions on speech, including the following:

Article 7 prohibits the use of mass media for certain purposes, including “committing criminally indictable deeds,” the disclosure of “state secrets” or “other secrets specially protected by law,” the “dissemination of materials propagandizing violence and cruelty,” and the “dissemination of extremist materials, as well as the information…prohibited by the law on terrorism.”

Article 12 forbids “the concealment or falsification of publicly important information,” the “spread of rumors,” the dissemination of “information with the aim of discrediting private citizens or particular categories of private citizens exclusively on account of sex, age, race, nationality, language, religion, profession, place of residences and work, and also of political convictions.”

Article 36 places certain restrictions on “mass media outlets specializing in erotic reports and materials,” including limiting the broadcast and sale of such material. The IC Draft broadly defines such mass media outlets as including any “periodical and/or electronic publication or a TV, radio channel, or any other mass media outlet which in general and systematically exploits public interest in sex.”

The references to prohibited activity in Article 7, 12 and 36 are fairly vague. They are not defined in the IC Draft, do not reference definitions elsewhere in Russian law, and will not be defined in binding case law given that the Russian Federation is a civil law jurisdiction. As such, they could open the law to government abuse. Moreover, in order to comply with international law, such content-based restrictions should be allowed only if necessary to achieve a legitimate interest. In addition, to the extent that these prohibitions are covered by other Russian laws of general application, it would be preferable not to repeat them in the media laws.

The IC Draft grants a number of rights without providing means to enforce them. For example, Article 6 prohibits censorship and the creation of a censorship board. Article 8 establishes a number of rights specific to journalists, such as the rights to receive and spread information, to visit government authorities, to access government documents, and to express personal judgments. However, neither Article 6 nor Article 8 provides any means by which journalists or anyone else can enforce the rights in them.

In order to make these protections more effective, the law should provide a private right of action for violations of them. In addition, the list of rights for journalists in Article 6 should be expanded to include the right to preserve the confidentiality of sources of reported information.

Article 12 prohibits journalists from “the collection of information in favor of outside persons or organizations, which are not an owner, publisher (broadcaster) or their authorized body.” This language may inappropriately restrict the activities of journalists and could be used by the government to determine that any piece of information gathered without the express and explicit request of the publisher would constitute a violation of the IC Draft. This language should be removed, as such employment matters would be better determined privately by journalists and their employers.

Articles 9 and 16 place a number of onerous obligations on journalists, including the duties to check the authenticity of information, to preserve the confidentiality of confidential information, to inform the publisher about potential liability that could result from publications, and to decline assignments if their fulfillment would infringe the law. Perhaps the most troubling is the duty “to receive the consent (except for cases, when it is necessary to protect public interests) to spread in mass media information about personal life of a private citizen from such citizen or his lawful representatives.”

Such regulation of journalistic activity could curb speech - especially in a regulatory scheme such as the IC Draft where a violation of a duty could provide the government with justification for revoking a broadcaster’s license (see Section 14 for further discussion of licensing). For example, the requirement to obtain consent could chill reporting of facts about individuals, particularly given that (i) it apparently bans even the dissemination of facts about an individual that are true and would cause no damage, and (ii) the terms “private citizen” and “information about personal life” are vague. In order to diminish the opportunity for abuse by state officials, and thus decrease burdens on speech, it would be preferable to allow private professional journalistic associations, rather than the government, to establish and enforce professional standards for journalists.

It would be advisable for Russia’s media laws to focus on establishing rights that encourage free expression by journalists and place duties on the government to enforce those rights, rather than saddling journalists with vaguely worded duties that burden speech. As such, Article 9 should be removed, and the duty to protect sources set forth in Article 16 should be restructured as a right held by journalists and guaranteed by the government. This right should be added to the list of journalistic rights in Article 6.

Perhaps it would be worth considering whether the attention that the IC Draft pays to the creation of journalistic rights and duties may actually serve to burden free speech. It may be better to guarantee free speech to all citizens and not only journalists, and, as is discussed in Section 8, it would certainly be preferable to provide all citizens, and not only the media, with the right to receive information. Providing certain rights and responsibilities only to journalists could be even more problematic given that the definition of “journalist” in the IC Draft is limited to those who perform journalistic activities “according to the owner’s, publisher’s (broadcaster’s) orders.”

Article 10 allows “state organs, local administrative bodies, organizations, public and religious associations, and political parties” to accredit journalists who will have permission to attend and report on their gatherings. The accreditation may be refused or rescinded if the rules of the accrediting organizations are violated, or if a court determines that the journalist or publisher has published information that “runs counter to the reality.” The refusal to provide accreditation can be appealed in court. “State organs, organizations, and institutions” are required to notify accredited journalists in advance about their meetings, conferences and other events; to supply them with verbatim reports, minutes and other documents; and to create favorable conditions for reporting. Accredited journalists shall have the right to attend meetings, conferences and other events held by the accrediting organs, organizations, and institutions, except where decisions have been made to hold closed gatherings.

The accreditation outlined in Article 10 gives public bodies the power to limit coverage of their activities to reporting by hand-picked journalists and publishers and to punish journalists for publishing unfavorable reports. The opportunity for informal censorship is obvious.

To prevent such potential abuse, situations in which accreditation is required should be restricted to those in which the number of journalists must be limited for practical reasons. In addition, accreditation should not be conducted by the bodies to which the accreditation is to be provided. Rather, it would be preferable if accreditation were performed by an independent accrediting body, such as a private professional journalistic organization.

Article 8 provides journalists with the right to “access documents and materials,” with the exception of those portions “containing information comprising a state, commercial or any other secret specially protected by the law.” Article 13 provides that “through mass media private citizens shall have the right to operative receipt of authentic information about the activities of state organs, local administration bodies, organizations, political parties, public and religious associations and their officials.” It further obligates government bodies, public and religious associations, and political parties and their officials to provide information about their activities to mass media in response to inquiries of publishers and journalists. Articles 14 and 15 set forth procedures for provision of such information, which include time limits and require written justifications of denied requests.

While such freedom of information provisions are encouraging, they do not provide adequate rights to information. Russia may want to develop more comprehensive freedom of information laws that do the following:

Article 25 requires registration with a “federal executive body” (often referred to in the IC Draft as the “registering body”) before conducting “activities related with production and dissemination of mass media.” Article 25 continues with the broad statement that such registration will be “determined by the government of the Russian Federation.”

As “mass media” is defined in Article 4 to included all “periodically renewed and distributed printed or electronic publication, radio-, TV channel, other form of periodical distribution of mass information, having its own name and aimed at unlimited number of people,” the registration requirements in Articles 25 through 33 apply to all types of media, including all forms of printed, electronic, and broadcast mass media. Article 43 provides that electronic mass media need not be registered if the printed version has already been registered, so long as the federal executive body is notified of the electronic distribution. Article 27 exempts from the registration requirements “periodical printed publications with the circulation of one issue (publication) of not less than one thousand copies.”

Article 28 allows the federal executive body to refuse to register media if the application fails to meet certain formalities. More significantly, an application may be denied if the federal executive body determines that the “name, subjects and/or specialization of the mass media present an abuse of the freedom of mass communication in terms of the clause 1 of article 7 of the present federal law,” i.e., if the mass media will be used for “committing criminally indictable deeds,” disclosing “state secrets or any other secrets specially protected by law,” or “propagandizing pornography or the cult of violence and cruelty.” Applications may also be denied “on other grounds” in the IC Draft that are not further defined. Denial of an application may be appealed in court.

Article 30 requires payment of a registration fee set by the “government of the Russian Federation.” The fee is to be refunded if the registration application is denied.

Article 31 provides the “registering body” broadly with “control over fulfillment of provisions of the present federal law by the owner of mass media,” and states that it may issue an “order” if the owner of a mass media outlet violates any provision of the IC Draft. If this violation is not cured within one month, the registering body may issue a second order. The registering body may issue warnings (not to be confused with orders) if the media outlet violates the content-based restrictions set forth in Article 7. Such warnings are valid for a period of one year. Orders and warnings may be appealed in court.

Article 32 provide that the registering body can ask a court to cancel a mass media outlet’s registration, and prevent it from disseminating information, if any of the following occurs: (a) a registration certificate has been obtained fraudulently; (b) the mass media outlet has not issued media for more than two years; (c) if the mass media outlet has not cured the violations cited in the second order discussed above and six months have not passed since the second order was issued; or (d) the registering body has issued multiple warnings that have not expired.

Article 32 further provides that the registering body may ask a court to suspend the registration of the mass media outlet, and thus prevent it from disseminating information, “if there is no other way to provide observance by the owner of the provisions of the present federal law.” Article 32 allows the registering body to suspend registration - without a court order - if it determines, in its sole discretion, that the media outlet has violated Article 7, Clause 2, which prohibits the “dissemination of extremist materials, as well as the information…prohibited by the law on terrorism.”

These registration requirements present a number of opportunities for abuse by government officials and otherwise burden the media. For example:

To prevent abuse by government officials, it would be advisable to remove the registration requirements in Articles 25 through 33. Broad registration requirements applicable to all types of media - including print and electronic media - serve to chill free speech and provide an opportunity for harassment without serving any legitimate aim. To the extent that regulation is deemed necessary for television and radio broadcasting, such regulation could be better achieved through the licensing scheme discussed in Section 14.

If the government were, however, to establish a registration requirement applicable to all types of media, it should be for administrative purposes only - in the same way that other companies register with the government - and should not be used to regulate or influence content. Such a registration system should be as follows:

In the event that these guidelines are not followed, and a registration body is established that has the discretion to restrict speech based on content, any such restrictions should be allowed only if necessary to achieve a legitimate interest.

Article 36 takes steps to define “advertising media,” but does not discuss it further (except to provide that state legislation may benefit mass media that is not advertising media), and Article 42 refers to “commercial communication.” To the extent that such distinctions between commercial and noncommercial speech are used to restrict commercial speech, such restrictions should occur only where necessary to serve a legitimate interest, as international law protects commercial speech as well as noncommercial speech.

No private or public media should be under any obligation to publish official information of any kind, particularly free of charge, as is required in Article 35. Such requirements could be used to influence media content or harass media companies with publication requests. In order to prevent the opportunity for government abuse, the government should pay to publish information, and Article 35 should be removed.

Article 41 requires publishers to deliver copies of periodical publications, free of charge, as determined by the federal executive body in its sole discretion. This provision gives the government the unchecked and unlimited authority to harass publishers by requiring them to incur potentially burdensome administrative and delivery costs. In order to prevent the opportunity for government harassment, the government should pay to receive published information, and this provision should be removed.

Article 42 provides for court-ordered “forced requisitioning or destruction of the circulation” of a printed publication. Any such seizure or destruction should be allowed only in extremely narrow and well-defined circumstances and pursuant to a court order where the court has determined that a strict harm and interest test has been met.

Article 44 provides that a “federal executive body” will issue licenses for television and radio broadcasting and sets forth the types of information that licenses will include. It broadly states that the “licensing order shall be determined by the government of the Russian Federation.”

Article 44 provides that licenses for “analog informational environments” shall be conducted on a competitive basis, unless otherwise provided by law. It further provides that broadcasting licenses may be denied on the grounds set forth in the conditions for the competition terms. It also states that license fees shall be determined by the “government of the Russian Federation.”

In addition, Article 44 provides that “privilege rights” will be granted to “TV and/or radio channels of special social importance,” as determined by the Russian government. The IC Draft does not define “privilege rights” or “special social importance.”

Article 45 provides that the federal executive body will establish a federal contest commission for awarding licenses on a competitive basis and for conformance of television and radio broadcasting to the “social requirements.” Article 45 gives the Russian government discretion to determine the “formation and activities” of the federal contest commission. These terms are not defined in the IC Draft.

For noncompetitive analog broadcasting licenses, the federal executive body will set the “social standard.” For licenses awarded on a competitive basis, the “social standard” will be set by the federal contest commission and may be changed only with the commission’s agreement. “Social standard” is defined in Article 4 to mean a “minimal level of broadcaster’s obligations on distribution of statements, materials and/or other information (including social advertising) required to achieve socially helpful purposes.”

Article 46 provides that licenses will be valid for ten years and that licenses will be automatically renewed unless the “broadcaster has multiple and valid warnings issued by the licensing body (which have not lost their validity).” A decision to deny renewal may be appealed in court.

Article 49 gives the federal executive body the broad “right to conduct control over fulfillment of the license conditions by the broadcaster.” It further provides that the federal executive body may issue an order to broadcasters that violate any provisions of the IC Draft. If this violation is not cured within the time period determined by the federal executive body, it may issue a second order.

The federal executive body may issue warnings (again, not to be confused with orders) if the broadcaster (a) violates Article 7, Clause 2, which prohibits the “dissemination of extremist materials, as well as the information…prohibited by the law on terrorism”; or (b) violates the conditions stipulated in the license about the broadcasting territory or reduction of the level of social standard. Such warnings are generally valid for a period of one year. Orders and warnings may be appealed in court.

Article 50 provides that the federal executive body can ask a court to cancel a broadcaster’s license and prevent it from disseminating information if any of the following occurs: (a) a license has been obtained fraudulently; (b) the broadcaster has not broadcast for more than six months; (c) if the broadcaster has not cured the violations cited in the second order discussed above and six months have not passed since the second order was issued; or (d) the federal executive body has issued multiple warnings that have not expired.

Article 50 further provides that the federal executive body may ask a court to suspend the license of the broadcaster, and thus prevent it from disseminating information, “if there is no other ways to provide observance of the provisions of the present federal law by the broadcaster.” Article 50 allows the federal executive body to suspend a license - without a court order - if it determines, in its sole discretion, that the broadcaster has violated Article 7, Clause 2, which prohibits the “dissemination of extremist materials, as well as the information…prohibited by the law on terrorism.” This section also states that a broadcaster’s license fee will not be refunded after cancellation of its license.

These licensing requirements present a number of opportunities for abuse by government officials:

To prevent opportunity for abuse by government officials and to protect speech broadcast on television and radio, the licensing provisions should be modified as follows:

Article 53 requires that agencies that collect, prepare and disseminate information must have their own networks of correspondents and that at least 75% of information disseminated by such agencies is written by their own correspondents, rather than simply being reprocessed from other sources. This restriction appears to limit dissemination of information unnecessarily and could, among other things, reduce the ability of issue-based organizations from gathering and repackaging information from a variety of sources for distribution to a new audience. For example, a small NGO in Russia would be prohibited from collecting and translating foreign material for redistribution to its Russian audience unless it could also pay for the development and distribution of its own original content. It would be preferable if (i) the percentage of original content required by this provision were reduced, or (ii) this provision were removed.

Article 56 provides that, with respect to types of “mass information” not referenced in the IC Draft, provisions of the IC Draft “on dissemination of television and radio channels or the printed and electronic media shall be applied depending on the essence of such relations.” In other words, provisions of the IC Draft applicable to the most similar form of media will be applied to media not referenced in the IC Draft.

This provision is vague, and its application may be very unpredictable. Publishers using new media and other media not covered explicitly by the IC Draft will have little way of knowing which provisions, if any, will apply to them. This language gives government officials and courts discretion to choose which provisions will apply, and thus may be open to abuse. As such, it would be best if Article 56 were removed.

Article 23 prohibits foreign individuals (even Russian citizens with dual citizenship) and companies with 50% or more foreign ownership from owning companies that broadcast on television to half or more of the Russian population. This prohibition could severely decrease the amount of foreign investment in Russia and could diminish the variety of points of view on Russian television. Rather than setting a flat ban on foreign-controlled media companies, it would be better to limit the number of television licenses that can be awarded to them.

Article 57 provides that agreements for “international cooperation in the area of mass information” may be concluded only by the Russian government. This restriction may be open to abuse by government officials as the term “international cooperation” is vague and undefined. Moreover, nongovernmental organizations are often in the best position to cooperate with international organizations and foreign governments, and there is likely no legitimate interest in preventing them from doing so. It would be preferable if Article 57 were removed.

Although Article 58 states that “citizens of the Russian Federation shall be guaranteed unimpeded access to reports and materials of foreign mass media,” it, in fact, places a number of limits on the dissemination of foreign information and is open to abuse. For example, it allows the Russian government to limit the reception of programs of direct TV broadcasting in interstate treaties and agreements to which Russia is a party. In addition, it requires that prior permission of the federal registration body be received before foreign media that is not registered in Russia can be disseminated. Denials of such permission will be upheld if a court determines that “such mass media violates the fundamentals of the constitutional system, morals, health, rights and legal interests of the citizens of the Russian Federation, provision of the defense for the country and the state security.” Moreover, the fees that must be paid to receive such permission will be determined by the Russian government in its sole discretion.

It would be best if the dissemination of foreign information were not subject to prior permission of the Russian government. Even though the IC Draft requires that a court affirm denials of permission after applying a certain standard, the standard is vague and overly broad and, thus, offers little protection. Information from foreign sources should have the same protections from content-based restrictions as information published by Russians, i.e., freedom of expression should be restricted only if necessary to achieve a legitimate interest. Moreover, the government should not be provided the opportunity to engage in informal censorship by setting fees that could discourage publication, especially when the IC Draft provides no check on the government’s authority in setting such fees. Article 58 should be removed.

Several provisions of the IC Draft hold journalists, publishers and media owners liable for publication of untrue information. For example, Article 9 places on journalists the duty to “check the authenticity of information” in their reporting. Article 61 provides a list of instances in which journalists, publishers and media owners will not “bear responsibility for the dissemination of information that does not conform to the reality and denigrates the rights and lawful interests of the citizens, or represents an abuse of the freedom of mass communication and/or the rights of the journalist.” These very narrow exceptions are limited to situations in which the disseminated information was published by the government or “informational agencies” or was reproduced from other sources. Although the IC Draft does not explicitly state that journalists, publishers and media owners will be held liable for publishing untrue information or “abusing” their freedoms and rights, Article 61 seems to create such a possibility.

These provisions could severely burden speech. First, the spectrum of speech for which the “abuse of freedom” language in Article 61 could potentially hold the media liable is overly broad, and thus could curb expression. Article 61 does not define what it means by “abuse of the freedom of mass communication and/or the rights of the journalist” and thus could be used to hold the media liable for almost any activity. Second, the language in Articles 9 and 61 that could create liability for publishing untrue statements is not accompanied by basic protections common to defamation legislation. For example, the law contains no requirement that a party bringing an action prove that she suffered damages and provides no reasonable publication defense. As such, Article 61, as well as the reference in Article 9 discussed above, should be removed, and, if defamation provisions are included, they should provide more protections.

Any defamation language included in Russia’s media laws should provide as follows:

Article 60 provides that violations of the IC Draft “shall lead to criminal, administrative, disciplinary or other responsibility according to the legislation of the Russian Federation.” It is important that this provision is not used to criminalize expression. All penalties for violation of Russia’s media law should be clearly set forth in the law, and criminal penalties should not be applied to speech. If criminal penalties are applicable to speech, they should be applied only if a strict harm or interest test has been met.

English pages