The Memorandum analyses a draft copy of the Russian federal Law “On Mass Media” (draft Media Law) for compliance with international standards. ARTICLE 19 is concerned that if this draft law is adopted in its current form, it will undermine Russia’s commitments under international law to protect and promote freedom of expression and will be a retrograde step in the development of democracy and media freedom in Russia.

The draft Media Law has some positive features, including a clear prohibition against State censorship, the protection of confidential sources and a system for allocating licenses to private broadcasters. Unfortunately, many of the law’s provisions are in breach of international standards regarding freedom of expression and media freedom, while others, if not necessarily formally in breach of international law, are unnecessary or could be improved. ARTICLE 19 has specific concerns in the following areas:

This first part of this Memorandum outlines Russia’s obligations to promote and protect freedom of expression under international law. It describes the guarantee of freedom of expression, particularly in relation to the media, and the limited scope of restrictions on freedom of expression which international law permits, along with the test against which any restriction must be judged. It then goes on to assess the Constitution of the Russian Federation, highlighting some key concerns and making recommendations on how to address them. The second part of this Memorandum contains a provision-by-provision analysis of the draft Media Law.

Article 19 of the Universal Declaration on Human Rights (UDHR),1  guarantees the right to freedom of expression in the following terms:

The UDHR, as a UN General Assembly resolution, is not directly binding on States. However, parts of it, including Article 19, are widely regarded as having acquired legal force as customary international law since its adoption in 1948.

The International Covenant on Civil and Political Rights (ICCPR),2  a treaty with 148 States Parties, which Russia acceded to in 1973, imposes formal legal obligations on State Parties to respect its provisions and elaborates on many rights included in the UDHR. Article 19 of the ICCPR guarantees the right to freedom of expression in terms very similar to those found at Article 19 of the UDHR:

Freedom of expression is also protected in Article 10 of the European Convention on Human Rights (ECHR),3  ratified by Russia on 5 May 1998, which states:

Guarantees of freedom of expression are also found in the two other regional human rights systems, at Article 13 of the American Convention on Human Rights4  and Article 9 of the African Charter on Human and Peoples’ Rights.5 

Freedom of expression is a key human right, in particular because of its fundamental role in underpinning democracy. For example, the European Court of Human Rights has repeatedly stated:

The guarantee of freedom of expression applies with particular force to the media, including the broadcast media and public service broadcasters. The European Court of Human Rights has consistently emphasised the “the pre-eminent role of the press in a State governed by the rule of law.” 7  It has further stated:

The Inter-American Court of Human Rights has stated: “It is the mass media that make the exercise of freedom of expression a reality.”9  The media as a whole merit special protection under freedom of expression in part because of their role in making public,

The European Court has furthermore stated that it is incumbent on the media to impart information and ideas in all areas of public interest:

The Court has also held that Article 10 applies not only to the content of expression, but also the means of transmission or reception.12 

Article 2 of the ICCPR places an obligation on States to “adopt such legislative or other measures as may be necessary to give effect to the rights recognised by the Covenant.” This means that States are required not only to refrain from interfering with rights but also to take positive steps to ensure that rights, including freedom of expression, are respected. In effect, governments are under an obligation to create an environment in which a diverse, independent media can flourish, thereby satisfying the public’s right to know.

An important aspect of States’ positive obligations to promote freedom of expression and of the media is the need to promote pluralism within, and to ensure equal access of all to, the media. As the European Court of Human Rights has stated: “[Imparting] information and ideas of general interest … cannot be successfully accomplished unless it is grounded in the principle of pluralism.”13  The Inter-American Court has held that freedom of expression requires that “the communication media are potentially open to all without discrimination or, more precisely, that there be no individuals or groups that are excluded from access to such media.”14 

One of the rationales behind public service broadcasting is that it makes an important contribution to pluralism. For this reason, a number of international instruments stress the importance of public service broadcasters and their contribution to promoting diversity and pluralism.

In order to protect the right to freedom of expression, it is imperative that the media is permitted to operate independently from government control, so as to protect the free flow of ideas. This ensures the media’s role as public watchdog and that the public has access to a wide range of opinions, especially on matters of public interest.

Under international law, it is well established that bodies with regulatory or administrative powers over both public service and private broadcasters should be independent and free from political interference. For example, in a preambular paragraph, the European Convention on Transfrontier Television states that Member States “[reaffirm] their commitment to the principles of the free flow of information and ideas and the independence of broadcasters”.15  The Council of Europe’s Committee of Ministers also considers the independence of regulatory authorities as fundamentally important. Its Recommendation on the Independence and Functions of Regulatory Authorities for the Broadcasting Sector,16  states in a preambular paragraph:

The Recommendation goes on to note that Member States should set up independent regulatory authorities. Its guidelines provide that Member States should devise a legislative framework to ensure the unimpeded functioning of regulatory authorities, which clearly affirms and protects their independence.17  The Recommendation further provides that this framework should guarantee that members of regulatory bodies are appointed in a democratic and transparent manner.18 

The Council of Europe Recommendation on the Guarantee of the Independence of Public Service Broadcasting19  provides additional guidance on this issue. This Recommendation provides that members of the supervisory bodies of publicly-funded broadcasters should be appointed in an open and pluralistic manner20  and that the rules governing the supervisory bodies should be defined so as to ensure they are not at risk of political or other interference.21 

Freedom of information is an important component of the international guarantee of freedom of expression, which includes the right to seek and receive, as well as to impart, information and ideas. There can be little doubt as to the importance of freedom of information. During its first session in 1946, the United Nations General Assembly adopted Resolution 59(1) which stated:

Its importance has also been stressed in a number of reports by the UN Special Rapporteur on Freedom of Opinion and Expression, as the following excerpt from his 1999 Report illustrates:

The Committee of Ministers of the Council of Europe has also recently adopted a Recommendation on Access to Official Documents which states:

In recognition of the importance of giving legislative recognition to freedom of information, in the past five years a record number of countries from around the world – including Fiji, Japan, Mexico, Nigeria, South Africa, South Korea, Thailand, Trinidad and Tobago, the United Kingdom and many East and Central European States – have taken steps to enact legislation giving effect to this right. In doing so, they join those countries which enacted such laws some time ago, such as Sweden, the United States, Finland, the Netherlands, Australia, and Canada.

In his 2000 Annual Report, the UN Special Rapporteur elaborated in detail on the specific content of the right to information:

The right to freedom of expression is not absolute. Both international law and most national constitutions recognise that freedom of expression may be restricted. However, any limitations must remain within strictly defined parameters. Article 19(3) of the ICCPR lays down the conditions which any restriction on freedom of expression must meet. It states:

Article 10(2) of the ECHR also recognises that freedom of expression may, in certain prescribed circumstances, be limited:

Restrictions must meet a strict three-part test.26  International jurisprudence makes it clear that this test presents a high standard which any interference must overcome in the strictest sense. The European Court of Human Rights has stated:

First, the interference must be provided for by law. The European Court of Human Rights has stated that this requirement will be fulfilled only where the law is accessible and “formulated with sufficient precision to enable the citizen to regulate his conduct.”28  Second, the interference must pursue a legitimate aim. These are the aims listed in Article 19(3) of the ICCPR and Article 10(2) of the ECHR. Third, the restriction must be necessary to secure one of those aims. The word “necessary” means that there must be a “pressing social need” for the restriction. The reasons given by the State to justify the restriction must be “relevant and sufficient” and the restriction must be “proportionate to the aim pursued.”29 

Russia is a member of the United Nations and a State Party to the ICCPR and ECHR. As such, Russia is legally bound to protect freedom of expression in accordance with international law. Article 2(2) of the ICCPR states:

Freedom of expression and freedom of information are protected by Article 29 of the Constitution of the Russian Federation. It states:

Article 29(2) prohibits the incitement of “social, racial or religious hatred and strife”, consistent with Article 20(2) of the ICCPR, which states: “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” The Russian Constitutional provision goes further, however, and also prohibits propaganda that claims “social, racial, national, religious or language superiority.” While other international instruments and national laws restrict the dissemination of ideas based on racial superiority or hatred, there is no international consensus on whether this is legitimate. One reason for the lack of consensus is that while few would support the promotion of racial superiority, hate speech laws can be abused, including by States to repress minorities. Abuse is likely to increase with the scope of hate speech laws, particularly if they include vague notions such as the promotion of racial superiority.

Article 29(4) of the Constitution grants the right to “seek, get, transfer, produce and disseminate” information by any lawful means. The provision thus implies that there are unlawful means of communicating, a possibility not recognized under international law. The ICCPR states that law, the right to freedom of expression may be exercised “either orally, in writing or in print, in the form of art or through any other media of his choice”, without qualification. Additionally, international law protects the right “regardless of frontiers”, something the Russian Constitution fails to make explicit.

Finally, freedom of expression is subject to an additional limitation, provided by Article 56 of the Russian Constitution, which states, in part:

Article 4 of the ICCPR permits States to derogate from their obligations under the ICCPR in “time of public emergency which threatens the life of the nation”, the existence of which has been “officially proclaimed”. However, any derogation must be strictly limited to meet the demands of the situation. Article 56 of the Russian Constitution does not contain such qualified language; the life of the nation need not be at risk prior to suspending a guaranteed right and there is no requirement to limit the derogation as much as possible. Restrictions need only conform to federal constitutional law.

The following section analyses the draft Media Law in relation to international standards on freedom of expression and media freedom, noting ARTICLE 19’s main concerns together with recommendations for addressing these concerns.

Part I of the draft Law contains the many of the general principles upon which the legislation is based. Article 1 states that the subject matter of the law is the regulation of relations “connected with search, retrieval, receipt and processing of information, foundation of mass media and their dissemination via TV and radio broadcasting, publications and other ways of mass information dissemination.”

Article 2 provides that the draft Law will apply to mass media established in the Russian Federation. Article 3 states that the draft Law will be paramount to other federal media legislation. The same provision also states that where there is conflict between the draft Law and Russia’s international undertakings, then the international rules will apply. Article 4 contains definitions of the draft Law’s relevant terms.

Article 5 declares that the “retrieval, receipt, production and dissemination of mass information, foundation, production, composing and dissemination of mass media, production, purchase, storing and use of technical devises, equipment and materials, required for production and dissemination of the mass media,” will not be subject to any restrictions, except those provided by federal legislation. Article 6 prohibits any form of media censorship, and Article 7 lists the restrictions imposed by the draft Law on the freedom of mass communication established by Article 5.

“Mass media” for the purposes of the Act is defined to include “a 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 [an] unlimited number of people.” “Electronic publications” presumably comprises the Internet, although this is not explicitly stated.

It is well established that different regulatory approaches are required for different media in accordance with the guarantee of freedom of expression. As the European Commission of Human Rights has stated:

Mass media on the Internet, for example, cannot be regulated in the same way as print or broadcast media. The Internet did not exist when the major international human rights treaties were adopted, and it is clearly very different then either the print or broadcast media; any regulatory mechanism needs to take this into account. Nor can the print and broadcast media be regulated in an identical manner as important considerations that apply to one do not apply to the other. For instance, in most, if not all, established democracies, the impetus to regulate broadcasting stems from the finite nature of the spectrum, thus necessitating a competitive licensing process, whereas resource limitations of this do not apply to the print media.

Article 7 of the draft Media Law identifies certain types of information, the dissemination of which constitutes abuse of the freedom of mass communication. Article 7(1) states that the media cannot be used for the purpose of committing indictable acts, disclosing state secrets, or disseminating materials that “propagandise” pornography and/or the “cult of violence and cruelty.”

Article 7(2) of the same provision states that the dissemination of “extremist materials” and other information identified and prohibited by the law on terrorism also constitute an abuse of freedom of mass communication. “Extremist materials” is not defined anywhere in the Law. Article 7(3) prohibits the dissemination information on the “means, methods of development, production and use, [and] places of trade” of narcotics and psychotropic substances.

In order to be valid under international law, restrictions on freedom of expression must satisfy the three-part test, discussed above (Section 2.6). Restrictions must be prescribed by law; pursue a legitimate aim, and be necessary to a democratic society. The restrictions contained in Article 7 fall below the required standard.

The terms “propagandising”, “pornography”, “extremist materials” employed in Articles 7(1) and (2) respectively, are excessively vague and do not satisfy the “prescribed by law” part of the three-part test for restrictions. In order to satisfy the test, a person must be able to reasonably predict what behaviour will constitute a transgression of the law.

Instead of relying on vague terms, some legislators and courts in democratic countries have tried to provide more detailed definitions of precisely what is prohibited. For example, in Miller v. California, the United States Supreme Court set down what it deemed to be the appropriate standard in relation to “obscenity”:

Courts in many jurisdictions have distinguished offensive material from material that is actually harmful, only allowing restrictions which have as their objective the prevention of harm. The European Court of Human Rights, for example, has stated that freedom of expression is applicable “to ‘information’ or ‘ideas’ that… offend, shock or disturb the State or any other sector of the population.”32 

To give effect to this distinction, the Canadian Criminal Code, for example, defines obscene material as follows:

The Supreme Court of Canada has held that the meaning of “undue exploitation” in this section is a community standards one, but “it is a standard of tolerance, not taste… not what Canadians think is right for themselves to see [but] what the community would [not] tolerate others being exposed to on the basis of the degree of harm that may flow from such exposure.”34  The Court distinguished between three types of sexually explicit material, classifying each in terms of the test for “undue exploitation”:

The Canadian Supreme Court has specifically held that the State could not restrict expression simply because it was distasteful or did not accord with dominant conceptions of what was appropriate. It upheld the legislation, however, on the basis that it was designed to prevent harm to society, by rooting out material which undermined basic human rights, such as equality between men and women:

ARTICLE 19 believes that the law should only restrict sexually explicit materials which can be shown to be harmful and which lack serious literary, artistic, political, or scientific value.

The prohibition contained in Article 7(2) is not formulated with the precision required under international law, sufficient to enable the citizen to regulate his or her conduct. The risk posed by insufficiently defined, and hence vague, restrictions to freedom of expression lie in the chilling effect that these have on communication and public discussion. Without knowing what kind of information constitutes “extremist materials”, the media may hesitate before engaging controversial topics. This will result in a stifling of political debate and the exclusion of minority viewpoints, two outcomes which are inimical to the development of a healthy democracy.

The entirety of Article 7(3) fails to satisfy the “necessity” branch of the three-part legitimate restrictions test. In order for a restriction on freedom of information to be “necessary”, not only must it address a “pressing social need”, but it must also be proportionate to the legitimate aim pursued. In the present case, the provision creates an overbroad prohibition that effectively precludes any public discussion regarding psychotropic substances and narcotics. This result is in contrast to the international legal perspective that wide latitude must be given to freedom of expression when the information at issue is related to a matter of public importance.37  Drug use and the criminal activity associated with drug trafficking are both issues of significant public interest, the discussion of which should not be silenced. The harm caused by Article 7(3) to freedom of expression far exceeds the limited gains – if any can be demonstrated – that the government is seeking to achieve.

Articles 8 and 9 set out the rights and duties of a journalist, many of which are issues of professional ethics, such as the duty to verify the authenticity of information reported (Article 9(1)), to preserve the confidential nature of information unless otherwise provided for by law (Article 9(3)), and to receive consent prior to revealing personal information about a private citizen (Article 9(4)).

It is contrary to international standards and best practice to legislate the responsibilities of journalists. In most democratic countries, the professional ethics of journalists are matters for self-regulation. Experience has shown that legal regulation of the behaviour of journalists by the State often leads to harassment of journalists who are critical of the government.

Article 12 prohibits the “abuse” of the rights granted to journalists by the Article 8 of the draft Law. Specifically, journalists may not conceal or falsify important public information, spread false rumours, collect information “in favour of an outside person or organization”, or disseminate information with the goal of “discrediting” private individuals on account of “sex, age, race, nationality, language, religion, profession, place of residences and work, and also political convictions.”

Regarding the first two “abuses” of journalistic rights identified in Article 12 – fraud and espionage – these are criminal offences already regulated by Russian laws. Therefore, reiteration in a media-specific law is redundant, since the obligation already clearly exists. It is illegitimate to give journalists a “double warning” of this sort as it suggests that journalists will be watched more closely than others in society, which is bound to have a chilling effect on media freedom.

Regarding the false news provision, it must be noted that most democratic countries either do not have or do not apply false news provisions, including Australia, France, the Netherlands, the United Kingdom and the United States. In the Zundel case, the Canadian Supreme Court noted that it could point to no other free and democratic country which finds it necessary to criminalize false news.38  As noted above, such provisions have been held to be unconstitutional by the Supreme Court of Canada, the Privy Council (in respect of Antigua and Barbuda), and the Supreme Court of Zimbabwe.

False news provisions have a chilling effect well beyond statements which are actually false. Citizens will be deterred from publishing anything they could not prove to be true in a court of law, taking into account the strict rules governing admissibility of evidence. Thus, this kind of prohibition also undermines the right granted by the draft Media Law to protect confidential sources (Article 16), since a situation may arise wherein a confidential source is the only person capable of verifying the truth of a statement.

Prohibiting false statements also fails to take into account the fact that language takes many different forms and that it is impossible to draw a clear dividing line between statements of fact and statements of opinion. Examples abound of statements which appear on their face to be false but are actually substantially correct, or really express opinions. Exaggeration, ridicule and sarcasm are some examples.

For these reasons, independent courts around the world have consistently held that false statements are protected by guarantees of freedom of expression.

Article 12 also prohibits journalists from concealing information deemed to be of public importance. This implies that the media may have an obligation to publish certain stories which is contrary to the principle of editorial independence (see the discussion in Section 5.2 regarding Must Carry Requirements).

Finally, the prohibition against “discrediting” private individuals on the bases listed in the provision suffers from the problem of vagueness, discussed above in relation to Article 7, and thus does not constitute a legitimate restriction on freedom of expression. As already noted, restrictions to freedom of expression must be narrowly drawn and their necessity must be convincingly established.39  Freedom of expression does not only protect unprovocative expression, but is equally applicable to information and ideas that “offend, shock, or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no democratic society.”40  The interests that the last sentence of Article 12 seeks to protect are better addressed by generally applicable defamation laws or by provisions regarding hate speech, wherein the offence consists of uttering statements that are meant to incite discrimination, hostility or violence against a group or person.

Articles 10 and 59(3) of the draft Media Law address the accreditation of national and foreign journalists. Article 10 provides that the owner, publisher, broadcaster or editorial office may apply to various government, political and religious bodies to accredit their journalists with these organisations. The refusal to grant accreditation may be appealed to a court of law. State bodies that have accredited journalists are required to supply these journalists with reports “and to notify these journalists of any meetings or conferences, unless the decision has been made to hold meetings in camera.”

Article 10(3) states that a journalist may be deprived of his or her accreditation if he or she, or the editorial office, violates an organisation’s accreditation rules or disseminates information that is untrue or which denigrates “the honour and dignity of the organisation.”

Article 59 of the draft Law states that the accreditation of foreign journalists will be conducted by the Minister of Foreign Affairs according to the provisions of Article 10.

As discussed above (Section 2.4), it is well established that bodies with regulatory or administrative powers over the media should be independent of government. This applies equally to accreditation as to other matters.41  State organs and local administrative bodies are not independent and therefore should not exercise direct control over accreditation.

Additionally, the fact that accreditation may be lost if the “honour and dignity of the organisation” has been denigrated is a clear violation of freedom of expression for a number of reasons. First, it allows the accrediting body full discretion to decide whether its “honour” and “dignity” have been adversely affected. Such wide discretion may be abused. Injury to reputation is an issue that should be addressed by generally applicable defamation laws. Second, laws aimed at the protection of reputation cannot be justified if their purpose or effect is either to protect the reputation of the State, or to prevent legitimate criticism of officials or the exposure of official wrongdoing.42  Third, while in some cases it may be appropriate to take measures when a journalist violates the law, international human rights law requires that such measures be proportionate to the harm done and the goal pursued. Cancellation of accreditation constitutes an extreme measure, which seriously restricts a journalist’s right to freedom of expression, and should be used only as a last resort.

Articles 25-33 of the draft Media Law set out the registration system for the mass media. Article 25 states that the mass media may only begin operations following registration. Article 25(2) further provides that registration will be conducted by the “federal executive body”. Article 26 lists the information that must be submitted with a registration applicant and imposes certain rules regarding the name used by a mass media outlet. Article 26(7) states that an applicant becomes the “owner” of the mass media outlet from the moment of its registration. Article 27 exempts one-off publications of less than 1,000 copies from the obligation to register. Article 28 lists the only grounds upon which registration may be refused: if there has been an abuse of mass media freedom, as defined by Article 7 of the draft Law; if the application is incomplete; if there is a problem with the media outlet’s chosen name; and for any other grounds provided for in the draft Law. A refusal from the federal body may be appealed to a court of law. Article 29 states the circumstances in which the re-registration of the media outlet will be necessary, such as when a founder has been replaced or there has been a change in the agreement between the owners of the media outlet and the editorial office.

Article 30 imposes a registration fee on the mass media, the amount of which will be set by the federal government. A higher registration fee will be charged to mass media specializing in communications and advertising of an “erotic” nature, while a reduced registration fee will be charged to mass media specializing in the “communications and materials intended for children, adolescents and disabled persons and used for educational, cultural and enlightening purposes.”

Article 31 stipulates that the government body charged with administration of the registration system is also responsible for enforcing the provisions of the Media Law. Orders issued by the registration body to owners of media outlets regarding violations of the Law must be complied with. If an owner does not comply with an order, the registration body may issue a second order. If this order is not complied with, then the registration body may apply to a court of law for the termination of the media outlet’s registration. The second warning must provide a date by which the media outlet must comply with the order; a court may only cancel the media outlet’s registration six months after this stipulated date for compliance has passed.

Article 32 states the grounds upon which a registration certificate may be cancelled by the registration body, including upon the request of the mass media outlet owner; the liquidation of the mass media outlet; or in response to a court order. A court order for annulment may be made if the registration certificate was obtained by fraud, if the media outlet has not produced anything for more than two years, or if the owner has not acted in accordance with a second warning issued by the registration body following a violation. If the registration body has not applied to the court for the annulment of a registration certificate within one year from the date of issue of the second warning to a mass media outlet owner, the second order may not form the grounds of a request for annulment. At the same time that the registration body applies to the court for an annulment of the registration certificate, it may also request that the court order the temporary suspension of the mass media’s activities. If a media outlet is accused of violating Article 7(2) of the present draft Law (dissemination of extremist materials or information prohibited by the laws on terrorism), the registration body itself may suspend the operations of the mass media outlet. Finally, Article 33 provides for a State register that will contain the registration details of all mass media outlets.

Under international law, license requirements for the print media cannot be justified as a legitimate restriction on freedom of expression since they significantly fetter the free flow of information, and they do not pursue any legitimate aim recognised under international law and there is no practical rationale for them, unlike for broadcasting where limited frequency availability justifies licensing (see discussion above in Section 4.1).

On the other hand, technical registration requirements do not, per se, breach the guarantee of freedom of expression as long as they meet the following conditions:

However, registration of the print media is unnecessary and may be abused, and, as a result, is not required in many countries.43  ARTICLE 19 therefore recommends that the print and electronic media not be required to register. As the UN Human Rights Committee has noted: “Effective measures are necessary to prevent such control of the media as would interfere with the right of everyone to freedom of expression.”44 

In any case, the registration system established under the Russian draft Media Law fails to meet the minimum conditions noted above and, as a result, breaches the right to freedom of expression.

First, the system imposes substantive conditions upon mass media outlets by requiring that the title of the mass media, their program goals and objectives not constitute abuse of freedom of mass communication (Article 28(2)). Restrictions of this sort, to the extent that they are legitimate, should be imposed through laws of general application, not the registration process. The illegitimacy of this provision is compounded by the fact that some of the “abuses” of freedom of mass communication listed in Article 7 are themselves illegitimate restrictions on the right to freedom of expression (discussed above).

Second, the imposition of registration fees that vary according to the proposed subject matter (Article 30) is illegitimate as fee levels should not exceed the costs associated with administering the registration system. In other words, they should not act as a tax on programmers. While different fees may be foreseeable on the basis of administrative expenses, the legislation must clearly define the categories of content that will attract higher costs. The terms “erotic” and “commercial” as currently employed in Article 30 are vague and provide little guidance to media programmers.

Third, the registration system is not administered entirely by a body that is independent of government.45  Independence is particularly necessary where the body has substantive powers; the draft Law empowers the registration body to suspend the operations of mass media outlets (Article 7(2)), without providing for an appeal.46 

Finally, the registration requirement under the draft Media Law applies to broadcasters, as well as the print and electronic media. Given that broadcasters are also required to obtain a license pursuant to the provisions of the draft Law (see below), there is no reason to impose this additional administrative requirement on them.

The licensing of broadcasters is governed by Articles 44 – 50 of the draft Media Law. Of particular relevance to the analysis of these provisions are the principles adopted by ARTICLE 19 on broadcast regulation, Access to the Airwaves: Principles on Freedom of Expression and Broadcast Regulation,47  which set out standards in this area based on international and comparative law. In addition, the Committee of Ministers of the Council of Europe has adopted a Recommendation on the Guarantee of the Independence of Public Service Broadcasting48  and a Recommendation on the Independence and Functions of Regulatory Authorities for the Broadcasting Sector.49  The following analysis is drawn from those sets of principles, as well as other authoritative standards in this area.

Article 44(1) provides that the Federal Executive body “specializing in the area of mass communication” is responsible for issuing broadcast licenses, without which no broadcasting activity may take place. As such, a State body is responsible for regulating the broadcast sector. Article 45 states that the purpose of the Federal Contest Commission on Television and Radio Broadcasting is the “provision of rational use for the television and radio broadcasting on a limited number of frequencies and assistance for the development of competition in the sphere of television and radio broadcasting, as well as conformance of television and radio broadcasting to the social requirements.”

It is well established under international law that bodies with regulatory or administrative powers over the media should be independent of government. The Council of Europe Recommendation on the Independence and Functions of Regulatory Authorities for the Broadcasting Sector states that Member States should establish “independent regulatory authorities for the broadcasting sector” and “include provisions in their legislation… which enable them to fulfil their missions in an effective, independent and transparent manner.”50  The ARTICLE 19 Principles state that the institutional autonomy and independence of such bodies should be guaranteed and protected by law in the following ways:

The draft Media Law, however, fails to guarantee explicitly the independence of the regulatory body. Furthermore, it fails to set out the appointments process for membership of the Federal Executive body. Members of the governing bodies of public bodies which exercise powers in the area of broadcast regulation should be appointed in a manner which minimises the risk of political or commercial interference.52  The Council of Europe Recommendation stipulates that the rules governing such bodies should ensure that members “are appointed in a democratic and transparent manner.”53  This means that the process for appointing members should not be dominated by any particular political party or commercial interest, and should allow for public participation and consultation.54  To ensure this, appointments should be made by a representative body, such as an all-party parliamentary committee, rather than the executive. A shortlist of candidates should be published, to ensure transparency and so that members of the public may comment upon them. Furthermore, only individuals who have relevant expertise and/or experience should be eligible for appointment and membership overall should be required to be reasonably representative of society as a whole.55 

Certain “rules of incompatibility” should also apply. The Council of Europe Recommendation states:

The ARTICLE 19 Principles go further than this, stating that no one should be appointed who:

Members should also be appointed for a fixed term and be protected against dismissal prior to the end of this term. Only the appointing body should have the power to dismiss members and this power should be subject to judicial review. A member should not be subject to dismissal unless he or she:

Finally, the financial independence of the regulatory body should be protected. The Council of Europe Recommendation states:

Article 44 states that broadcast licenses will be awarded on a competitive basis, unless otherwise provided for by federal legislation. The draft Law does not distinguish between private and public service broadcasters. Licenses will be issued to cover specified geographic areas. Licenses may be denied if the applicant does not have the necessary technical capacity. The amount charged for a broadcast license will be determined by the federal government. Article 44(9) states that television and radio broadcasters of “special social importance” will have certain privileges. The list of television and radio channels of special social importance, and the conditions for distribution will be determined by the federal government.60 

Article 46 states that the term of a broadcasting license is ten years, subject to automatic renewal unless the broadcaster has been issued multiple warnings – the number is not specified – by the regulatory body, and these warnings remain unresolved.

The form and content of the license will be determined by the federal government. Article 47 stipulates that the license will contain several items of information, including the name of the licensing body, the legal name of the broadcaster, the territorial boundaries of the license, the license number and so on. Notably, the license will also state the “social standard” for the license, which is defined in Article 4 as: “a minimum level of broadcaster’s obligations on distribution of statements, materials and/or other information (including social advertising) required to achieve socially helpful purposes, established according to the requirements of the present federal law.” (This is requirement is discussed in more detail below, Section 5.2 Content Issues, under Must Carry Requirements.)

A broadcast license may be renewed without any changes to its terms and conditions when there has been a reorganization of the license holder, where there has been a change in the territorial boundaries of the license, and where the license holder has changed addresses (Article 48). The license may also be renewed if there has been a reduction in the level of “social importance”, but Article 48(2) stipulates that any reduction in the level of social standard must result from an agreement to that effect with the responsible federal commission.

The draft Law fails for the most part to set out the substantive criteria for deciding between competing applications. It is important that criteria for deciding between licence applications be set out to ensure fairness and to ensure that decisions are made in the public interest. The Council of Europe Recommendation on the Independence and Functions of Regulatory Authorities for the Broadcasting Sector states: “The basic conditions and criteria governing the granting and renewal of broadcasting licences should be clearly defined in the law.”61  The criteria should, as far as possible, be objective in nature, and should include promoting a wide range of viewpoints which fairly reflects the diversity of the population and preventing undue concentration of ownership, as well as an assessment of the financial and technical capacity of the applicant.62 

Granting certain privileges to broadcasters of “special social importance” is insufficiently clear, particularly as a basis for allocating benefits, an activity which is notoriously open to abuse. Rather, “special social importance” should explicitly require that broadcasters provide a service that promotes the overall public interest by providing a wide range of informational, educational, cultural and entertainment programming that contributes to a plurality of opinions and an informed public.

The licensing process also lacks transparency. The Council of Europe Recommendation states: “The regulations governing the broadcasting licensing procedure… should be applied in an open, transparent and impartial manner.”63  Secretive and unfair licensing mechanisms may result in long delays in the awarding of licences, refusal of licences on insubstantial grounds or the granting of licenses only to supporters of the government. Licence application hearings should therefore be public, so that the merit of the application and the reasons for the authority’s decisions are matters of public knowledge and debate. Finally, the draft Law does not provide for the appeal or judicial review of the licensing commission.

Article 49 states that upon violation of any of the draft Media Law’s provisions, the licensing body may make an order for the elimination of such violations. If the broadcaster does not obey the order, the licensing body may, after a period of time determined by it, issue a second order for the elimination of said violations. If, after six months have passed from the end of the time period given by the licensing body to the broadcaster to remedy the violations, the violations persist, the licensing body may apply to a court for the termination of the broadcast license. A broadcaster may appeal an order or warning to a court of law.

Article 50 stipulates the circumstances in which a license may be cancelled by the licensing body: if the license holder applies for its cancellation, at the end of the term of validity of the license if renewal is not possible or if the license holder is liquidated and there is no one to whom the license may be transferred.

Under the terms of the same provision, a court of law may only cancel a license following an application by the licensing body in the following circumstances: if the license was obtained through fraud, if the broadcaster has not been in operation for more than six months, if the broadcaster has not obeyed a second order regarding violations of the draft Law, or lastly if there are “many acting warnings” – the exact number is not specified – issued by the body against the broadcaster. Confusingly, Article 49 refers to “order”, while Article 50 refers to “orders and warnings”. The difference between these terms is not obvious from the legislation, although the time limits for appealing to a court for the cancellation of a license are different. If the licensing body does not appeal to the court for the cancellation of a license within six months of the issue of a warning, the body loses its right to make this application. A warning that is more than 12 months old and which has not been acted upon by the licensing body is no longer valid. An order, by contrast, does not expire. If the licensing body has appealed to a court for the cancellation of a license, this appeal may form the basis of a decision to refuse the renewal of a broadcast license.

In terms similar to the provisions regarding the suspension of a mass media outlet’s registration (Article 32), Article 50 states that a court may suspend a broadcast license if “there are no other ways” to compel the broadcaster to act in accordance with the Media Law. The licensing body may suspend a broadcast license for violations of Article 7(2) regarding the dissemination of extremist materials or information prohibited by the laws on terrorism.

The federal licensing body, as created by the draft Law, has been granted significant discretionary power to suspend and/or cancel broadcast licenses. A body that exercises such power and which is not independent of government, poses a serious risk to freedom of expression.

Additionally, sanctions, like other restrictions on freedom of expression, must be proportionate. This implies that the authorities should have at their disposal a range of graduated sanctions for breach of the law, so that a sanction corresponding to the nature and level of the breach may be applied. For this reason, the Committee of Ministers of the Council of Europe has recommended that broadcasting regulatory bodies should have the following powers:

The penalties set out in the draft Law fails to meet these standards. In Articles 49 and 50, the only available sanctions are orders, warning and termination. Other possible sanctions, such as a requirement to publish a decision recognising the breach or fines, are not available. Furthermore, the period of suspension is not specified and thus an indefinite suspension could theoretically be applied, resulting in a de facto termination of the license.

The threshold for requesting the revocation of a broadcaster’s license is too low. “Many active warnings” could be as few as two violations. Suspension and revocation are very harsh sanctions which should only be applied, if ever, in extreme cases of repeated and gross abuse of the law.

The problems noted above are compounded by the fact that a violation can be based on an “abuse” of freedom of mass communication, as listed in Article 7 of the draft Law. Many of these, as noted above, are either illegitimate grounds for restricting freedom of expression or are excessively broad or vague. As a result, it is probably relatively easy for the government to abuse its powers and suspend or revoke broadcast licenses.

Articles 19 of the draft Media Law states that a “private citizen will have the right to demand disproof of information that does not correspond to the reality and denigrates their honour and dignity or business reputation and that was spread by the given mass media outlet.” Article 20 contains rules regarding the acceptable format of a refutation: it must indicate which information is allegedly false; it must be printed or broadcast in similar circumstances to the offending story; and the size of the refutation may be up to, but no longer than twice the length of the original story, either in terms of word count or time.

Article 21 allows a mass media outlet to refuse to publish a refutation under the following circumstances: the refutation contains an abuse of the freedom of mass communication, according to Article 7; the refutation contradicts a court decision; it is anonymous; if someone “disproves the information that has been disproved in the media; and where the demand for refutation is received by the media outlet more than six months after the publication of the offending information.

A mandatory right of reply is a highly disputed area of media law. In the United States, it is seen as unconstitutional on the grounds that it represents an interference with editorial independence.65  In Europe, in contrast, the right of reply is the subject of a resolution of the Committee of Ministers of the Council of Europe.66  In many Western European democracies, the right of reply is provided for by law and these laws are effective to a varying extent. The purpose of a right of reply is to provide an individual with an opportunity to correct inaccurate facts which interfere with his or her right to privacy or reputation. Advocates of media freedom, including ARTICLE 19, generally suggest that a right of reply should be voluntary rather than prescribed by law. In any case, certain conditions should apply:

Article 35 of the draft Media Law imposes a legal obligation on mass media outlets to disseminate specific types of information. Article 35(1) states that the broadcaster and publisher must report certain court decisions within specified periods of time. The same paragraph requires that broadcasters must disseminate social advertising – which is part of the social standard – free of charge and in an order determined by the licensing body. The “social standard” refers to the broadcaster’s obligation to distribute statements, materials, and/or other information “required to achieve socially helpful purposes”.

Article 35(2) requires the State mass media to disseminate messages and materials from the federal government. The State media is also obliged, “without hesitation and free of charge,” to publish information about fire safety. Notably, Article 35 is the only provision in the draft Media that makes specific reference to the State media, instead of to the mass media in general.

While it is certainly important that the public broadcaster should carry news of important government policies, a provision such as this is both unnecessary and susceptible to abuse. It is unnecessary because any responsible media outlet will carry information of public importance without being required to do so by law. Experience in countries all over the world shows that both public and private media provide ample coverage of government policies in various areas of activity even when they are not bound by a legal duty. The provision is open to abuse because officials may use it in circumstances for which it was not intended. And finally, independent media may be harassed, and even closed, for allegedly failing to fulfil these vague requirements.

Even in relation to state and public service broadcasters, the Committee of Ministers of the Council of Europe has voiced concern over “must-carry” requirements, stating:

Article 36(2) of the draft Media Law restricts the dissemination of so-called “erotic” communications. The draft Law states that programmes categorized as “erotic” may only be broadcast uncoded by radio and television between the hours of 11 o’clock at night and four o’clock in the morning. The retail sale of publications that specialize in erotica is only permitted in specially designated premises – the location of which is determined by local government – and the material must be sealed in transport packages. Finally, the provision states that legislation may provide “benefits” to mass media which is not of an advertising or erotic nature.

This provision restricts freedom of expression by limiting distribution and funding opportunities for media that is deemed to be “erotic”. According to the draft Law, media that specializes in erotica is that which “in general and systematically exploits public interest in sex.” This definition is too vague to provide sufficient guidance to the mass media.

Finally, the government should not be involved in awarding benefits to the media on a discretionary basis. If benefits are to be awarded, the process should be managed by a body that totally independent of government – something lacking from the Russian legislation.

The draft Media Law establishes the right of citizens to obtain information about government bodies, political parties, public and religious organisations and their officials, through the media (Article 13). These public bodies have the corollary obligation to provide information to the mass media in response to requests from owners, publishers and broadcasters, editorial offices, and journalists. The bodies must also provide information by holding press conferences and circulating reference and statistical materials (Article 13(2)).

Those members of the media identified by Article 13 may make either written or oral requests for information and a representative of the relevant body or organisation is required to provide the requested information within three days following the receipt of the request (Article 14).

Article 15 of the draft Law states that a request may be refused if it involves information that contains state, commercial, “or any other secret specially protected by the law.” A notification containing the refusal must contain the reason why the information cannot be disclosed or why non-secret information cannot be separated from the protected material, the name of the official who has refused the request, and the date the decision was made. Article 15(2) allows for an extension of the three-day response time for up to 20 days, as long as a notification of the delay is sent to the requester.

Article 16 identifies further categories of information that are secret and which may not be revealed by the media, including the identify of confidential sources – unless a court orders the disclosure – and the identity of a minor who is either the victim, or perpetrator, of a crime, without the consent of the minor or his or her legal guardian.

As discussed above (Section 2.5), freedom of information is an important component of freedom of expression, a fact recognized by the Russian Constitution, Article 29(4) of which states: “Everyone shall have the right to seek, get, transfer, produce and disseminate information by any lawful means.” The draft Media Law, however, creates only a partial right, granting it to private citizens through the intermediary of the media. International law requires that States guarantee the right of everyone to seek, receive and impart information. The Council of Europe Recommendation on Access to Official Documents also clearly states:

Furthermore, this system leaves media freedom susceptible to abuse. Authorities may claim that the press is not disseminating enough information, or the right kind of information, and thus the media may be threatened with losing its registration, accreditation, or license.

In addition to this glaring deficiency, the “right to information” regime established by Article 13 – 16 of the draft Media Law is remarkable for its omissions. ARTICLE 19 has adopted a set of principles on the right to information, The Public’s Right to Know: Principles on Freedom of Information Legislation, which set out standards in this area based on international and comparative law.69  The following analysis is drawn from those sets of principles, along with the Council of Europe Recommendation on Access to Official Documents and other authoritative standards in this area.

The draft Law provisions do not specify with sufficient clarity what kinds of information the media may request. Article 13 refers only to “authentic information” and “information about their [the identified bodies] activities”. “Information” should be defined to include all records held by a public body, regardless of the form in which the information is stored (document, tape, electronic recording and so on), its source (whether it was produced by the public body or some other body) and the date of production.70  The Council of Europe Recommendation states:

The right in the draft Law fails to comply with international standards regarding the list of bodies to which the right applies. The legislation should clearly define which public bodies are covered. The definition of ‘public body’ should focus on the type of service provided rather than on formal designations. To this end, it should include all branches and levels of government including local government, elected bodies, bodies which operate under a statutory mandate, nationalised industries and public corporations, non-departmental bodies or quangos (quasi non-governmental organisations), judicial bodies, and private bodies which carry out public functions (such as maintaining roads or operating rail lines).72 

Furthermore, private bodies themselves should also be included if they hold information whose disclosure is likely to diminish the risk of harm to key public interests, such as the environment and health,73  or is required for the exercise or protection of a right. The South African Constitution and Promotion of Access to Information Act,74  for example, include this sort of latter provision. Article 32(1) of the South African Constitution states:

Like freedom of expression, freedom of information may also be subject to certain restrictions. Under international standards, a refusal to disclose information is not justified unless the public authority can show that the information meets a strict three-part test:

The Council of Europe Recommendation states:

It is not sufficient that information simply falls within the scope of a legitimate aim listed in the law. The public body must also show that the information would cause substantial harm to that legitimate aim. In some cases, disclosure may both benefit and harm that aim. For non-disclosure to be legitimate in such cases, the net effect of disclosure must be to cause substantial harm to the aim. In addition, even if it can be shown that disclosure of the information would cause substantial harm to a legitimate aim, the information should still be disclosed if the public interest benefits of disclosure outweigh the harm. In such cases, the harm to the legitimate aim must be weighed against the public interest in having the information made public.

Without the “harm” and “public interest” components of the test, public authorities will have wide discretion to deny requests for information and the underlying objective of the law could be defeated.

The restrictions contained in Article 15 of the draft Law are overbroad and fail to fully incorporate a “harm” test, the second part of the test for exceptions. The draft Law also lacks a “public interest” override.

ARTICLE 19 also notes that the draft Law does not include a number of common and legitimate grounds for refusing to disclose information, such as national security, law enforcement or public safety. While we do not normally recommend extending the scope of exclusions in a freedom of information regime, we are concerned that the failure to include these grounds in the Ordinance reflects the fact that it is not really intended to be comprehensive and that information held by security, defence and law enforcement bodies will not in practice be subject to disclosure under the Ordinance.

The draft Media Law also fails to legislate several other elements which, if included, would strengthen the public’s right to information. First, there is no provision for appeals from a decision to refuse a request for information. Principle 5 of The Public’s Right to Know recommends that governments adopt a three-level process for deciding requests, involving the public body that received the request, an independent review commission, and the courts:

Second, there is no provision regarding what party will bear the costs of an information request. Principle 6 of The Public’s Right to Know states that where the costs are born by the applicant, these should not be so high as to deter potential requests.

Third, the draft Law’s requirement that public bodies provide information to the media via press conferences and the release of reference and statistical materials (Article 13) falls far short of international standards regarding the obligation of government bodies to publish key information. At a minimum, public bodies should be required to publish the following:

Related to the obligation to publish certain categories of information is the obligation to maintain records and to sanction the wilful obstruction of access to, or destruction of public records.77 

Fourth, the draft Law should provide protection for “whistleblowers” – individuals who release information on official misconduct. Civil servants and other individuals in the public sector sometimes have access to information which may expose official wrongdoing, but they are afraid to release it because they may face legal or employment-related sanctions “Wrongdoing” in this context includes the commission of a criminal offence, failure to comply with a legal obligation, a miscarriage of justice, corruption or dishonesty, or serious mal-administration regarding a public body. It also includes a serious threat to health, safety or the environment, whether linked to individual wrongdoing or not. Whistleblowers should benefit from protection as long as they acted in good faith and in the reasonable belief that the information was substantially true and disclosed wrongdoing. Such protection should apply even where disclosure would otherwise be in breach of a legal or employment obligation.

Finally, the experience of countries which have introduced freedom of information legislation shows that a change in the culture of the civil service from one of secrecy to one of transparency is a slow process, which can take ten years or more. As such, the law should provide for promotional and educational activities, targeting both public bodies and society-at-large, including: