Briefing Note Review of Recent Laws Affecting Digital Rights in Russia - Seminar: Digital Legislative Developments in Russia Freedom of Expression Online

Respect for freedom of expression in the Russian Federation lags significantly behind international standards and this problem has become significantly more serious since Vladimir Putin returned to the post of President in 2012. Among a number of other developments, the adoption since 2016 of five major legal reform packages governing digital communications, including three in 2019 alone, have had an important negative impact on freedom of expression online. This Briefing Note explains the main provisions of these legal reforms, focusing both on their technical provisions and on how they could be used to limit free speech online in Russia. 

The first two legal reforms, called the “Yarovaya” Laws after their author, were adopted in July 2016 and require those covered by the Laws, namely “telecommunication operators” and “organisers of information dissemination”, to retain both metadata relating to communications and also the actual content of communications, for long periods of time. A list of the specific services which are covered includes a wide range of Russian telecommunications and Internet access service providers, social media and websites hosting discussion forums, although for now most international services have been exempted. These companies must provide access to the retained data to the Federal Security Services (FSB) and other law enforcement bodies, along with decryption keys. Although normally a court order is required for such access, this is not required for serious crimes, including terrorism offences, which is the main target of the Yarovaya laws. As such, these Laws substantially increase the powers of surveillance over online activities that were put in place in Russia in the 1990s through the System for Operational Investigative Measures (SORM), thereby significantly undermining protection for privacy and freedom of expression. 

The “Disrespect for Authority” Law applies to online content which expresses “in an indecent form … blatant disrespect for human dignity and public morals” in relation to the State, official State symbols, the Constitution or public bodies. These rules are based on vague notions – such as “indecent form” and “blatant disrespect for human dignity and public morals” – and protect a range of actors – public bodies and inanimate objects, such as the State, the Constitution and State symbols – which cannot properly be said to have reputations in the first place. They also provide the authorities with an easy, extra-judicial means to block access to content. Once the Prosecutor decides content is illegal, he or she informs the Federal media regulator, Roscomnadzor, which in turn informs the service provider. The latter then informs the owner, who has 24 hours to take the content down, failing which the service provider must block it. The evidence suggests that, so far, well over one-half of all of the cases under this Law relate to statements about the president, giving a clear indication of its true purpose. 

The “Fake News” Law provides for measures against content which meets two conditions. The first, is the distribution of “inaccurate socially important information … under the guise of a credible report”. The second is the creation of a threat of: a) harm to life, health or property; b) mass disturbance of public order or public security; or c) interfering with various systems, such as transport, social infrastructure, credit institutions, industry or communications. None of the key terms are defined and the Law fails to provide for defences or de minimus standards for its application (for example to protect against application in the case of a simple error). Leading courts around the world have held that the notion of “fake news” is too vague to be used as a condition for regulating content. Under this Law, content can be blocked in the same way as under the “Disrespect for Authority” Law, although here the owner is only notified in the case iv of a registered mass media outlet while for other websites immediate blocking by the service provider is envisaged. Since the Law just came into effect at the end of March 2019, it is too early to assess its impact, but the potential for abuse is significant. 

Finally, the “Sovereign Internet” Law ultimately allows for a control centre operating within Roscomnadzor to undertake centralised management of the Russian Internet, in the case of a threat to its stability and security, including by cutting parts or all of it off from the global Internet. However, many commentators have suggested that the preparatory measures which will be put in place to enable centralised management are the real objective of the legislation. Internet access providers must install “technical means” to counter threats which will be provided free of charge by Roskomnadzor. The technical means being used in the pilot implementation of the Law allow for DPI (deep packet inspection) and for the blocking of illegal content, which may be adapted specifically for any particular provider. Together, the Law would appear to enable the authorities to block access to parts or all of the global Internet, to shut down the Internet entirely within Russia, to block certain traffic (i.e. to conduct fine-grained censorship) and to conduct close surveillance of the communication activities of selected actors, all without the need for any external authorisation (such as from a court). 

It is too early to determine what the real impact of the measures contained in these five major legal reform packages governing digital communications will be. What is clear, however, is that they give the authorities vast powers, subject only to limited court oversight, to prevent a similarly vast range of largely undefined content from being disseminated online, as well as to monitor and conduct surveillance over online communications within Russia. Only time will tell what the actual implications are.