Russia: Six reasons why the defamation reform fails to protect freedom of expression

Recent amendments to Russia's defamation legislation - including partial decriminalisation of libel and insult - will not improve the situation for journalists and the media in the country. Despite the amendments, the state retains its powers to control speech by introducing administrative responsibility for libel and insult. The new provisions in the Code of Administrative Offenses are as dangerous as the repealed provisions of the Criminal Code as they are vague and provide for harsh administrative sanctions.

On 17 November 2011, the Russian State Duma (Parliament) repealed Articles 129 and 130 of the Criminal Code which provided for the criminalisation of defamation and insult. Articles 129 and 130 failed to meet international standards on the right to freedom of expression. In addition to allowing criminal liability for defamation with sentences such as imprisonment, correctional labour and high criminal fines, the Articles also provided for heightened responsibility for defamatory statements made in the media.

On numerous occasions, ARTICLE 19 has expressed its concerns about the abusive and arbitrary use of these provisions by the authorities to suppress criticism and hinder investigative journalism in Russia.[i] These concerns have been shared by other organisations.  For example, in 2006, the Parliamentary Assembly of the Council of Europe (PACE) criticised the high number of defamation lawsuits against journalists in Russia.[ii] According to a PACE report, as many as 8-10,000 defamation cases a year had been filed against journalists and media outlets for defamation and other issues.[iii] Moreover, the European Court of Human Rights had persistently found that Russian judges failed to properly balance the right to freedom of expression with the right to reputation and ignored established international standards and safeguards for the right to freedom of expression in the application of defamation legislation.[iv]

The reform of Russia's defamation legislation was necessary and long awaited. Unfortunately, the legislative amendments adopted by the State Duma do not improve the situation overall and will not improve the position of the right to freedom of expression or media freedom in Russia. In particular, the following shortfalls of the new defamation regime:

1. Criminal responsibility for defamation has been replaced with administrative responsibility: In contrast to the reforms leading to decriminalisation of defamation in other countries, the State Duma has decided to replace criminal responsibility for defamation with administrative responsibility. The scrapping of Articles 129 and 130 of the Criminal Code was accompanied by the incorporation of new administrative offenses of insult and libel into the Code of Administrative Offences.[v] The decision to change the law in this way is peculiar from a legal viewpoint. Generally speaking, administrative offences are distinguished from criminal offenses on the basis of their consequences: administrative offences are less dangerous to the public than criminal offences and are directed at public governance and order. Since the acts of libel and insult concern private rather than public relations, it is not surprising that in all countries with the exception of Belarus[vi] and Kazakhstan[vii] they are not regarded as administrative offences.
2. The new administrative law regime retains a greater responsibility for defamation made in the media: The Code of Administrative Offences distinguishes between libel and insult made privately and publicly, including in the mass media, with higher fines provided for the latter.
3. The Code of Administrative Offences provides for higher fines than the Criminal Code: While the highest fine in the Criminal Code was 120,000 rubles (approx. $3,820),[viii] the Code of Administrative Offences provides for a fine of up to 300,000 roubles (approx. $9,550) for the same offence. In addition, for offences of libel where there are accusations of serious or especially serious criminal acts, the Code of Administrative Offences provides for administrative fines of up to 500,000 rubles (approx. $16,000 USD).[ix] We note with concern that the severest fines can be imposed on media outlets and journalists.[x] If imposed, the maximum fines would have serious consequences for the existence of most media outlets in Russia.
4. The administrative offences of libel and insult are unclear: In particular we point to Articles 5.60 paragraph 4, and 5.61 paragraph 3 establish administrative liability for failure to prevent defamation and insult disseminated publicly or by the media. These provisions are particularly concerning since they introduce de facto censorship of the media. These provisions are further problematic because they do not specify how failures to prevent defamation or insult can be proven in courts. Unclear legislation is often used to harass media with numerous lawsuits. Furthermore, the vagueness of the law will increase self-censorship by the media.
   
5. The decriminalisation of defamation is not complete: The claim of the authorities, that Russia has fully decriminalised defamation is not completely true. The legislative reform did not abolish Article 319 of the Criminal Code which protects government officials from insult. On the contrary, the State Duma increased the penalty of compulsory work for this crime from 120 to 180 hours to up to 360 hours. The other penalties provided are fines and correctional labour for up to one year. The special protection for public officials with respect to defamation and insult is in violation of international standards of freedom of expression according to which public officials, compared to ordinary citizens, should endure harsher criticism. In several cases against Russia the European Court of Human Rights found that domestic courts failed to apply this standard.[xi]
6. The reform of defamation law does not cover civil liability for defamation: Despite the fact that in 2010, the Plenum of Russia's Supreme Court adopted a resolution demanding that judges ensure that compensation for damages against the media are reasonable and proportionate and do not destroy media outlets, legislative provisions allowing for civil liability for defamation do not provide for adequate protection of the right to freedom of expression. The lack of a limit to defamation compensation, for example, allows claimants to seek excessive awards. For example, presently National Reserve Bank is seeking 11 million rubles (approx. $354,430) in damages from the publisher of the Kommersant newspaper for alleged defamation in an article.

Importantly, the Russian defamation legislation does not explicitly provide that public figures should tolerate more criticism. State and public institutions can sue for defamation regardless of the amount of financial harm they have suffered. Moreover defences of reasonable publication and fair comment are not recognised[xii]. Non-pecuniary measures such as the right to reply are rarely used. As a result many judges fail to properly balance the right to freedom of expression with reputation.

In the view of these shortcomings of the legislative reform, ARTICLE 19 calls on the Russian government to address these issues immediately by adopting legislation that fully complies with international standards on the right to freedom of expression. In particular, we recommend:

• Article 319 of the Criminal Code, criminalising insult against public officials, should be removed from the Criminal Code
• The administrative offences of defamation and insult must be removed from the Code of Administrative Offences
• Civil legislation allowing for the protection of reputation should undergo a thorough reform and should include safeguards for the right to freedom of expression as mandated by international standards in this area
• The government should ensure that judges receive a comprehensive training that encompasses international standards on the right to freedom of expression, including those relevant to implementing defamation legislation.

For more information:

Please contact Boyko Boev, [email protected]

http://www.article19.org/pdfs/submissions/russia-written-comments-of-article-19-global-campaign-for-free-expression-co.pdf

[ii] Report to the Monitoring Committee of the Parliamentary Assembly of the Council of Europe, Honouring of Obligations and Commitments by the Russian Federation, Doc. 10568, 3 June 2005, Point 389; available at: http://assembly.coe.int//Main.asp?link=http://assembly.coe.int/Documents/WorkingDocs/Doc05/EDOC10568.htm.

[iii] Ibid.

[iv] See, for example, Romanenko and others v Russia, Judgement of 8 October 2009, Application No. 11751/03.

[v] Articles 5.60 and 5.61 of the Code of Administrative Offences. The first provision defines the administrative offense of defamation, the second administrative offense of insult.

[vi] Article 188 of the Criminal Code of Belarus and article 9.2 of the Belarus Code of Administrative Offences.

[vii] Following a 2011 amendment to the Criminal Code of Kazakhstan, Articles 129 and 130 of the Criminal Code of Kazakhstan prescribe that criminal responsibility for libel and insult can be only after an administrative penalty has been imposed for the same offence. See the position of ARTICLE 19 relating to this amendment Kazakhstan: Defamation Still Problematic Despite Changes of the Criminal Code; available online at

http://www.article19.org/data/files/pdfs/press/kazakhstan-defamation-still-problematic-despite-changes-of-the-criminal-code.pdf The administrative offenses of defamation and insult have not been incorporated in the Code of Administrative Offences of Kazakhstan by the end of November 2011.

[viii] Article 129 paragraph 2 of the Criminal Code.

[ix] Article 5.60 paragraphs 2 and 3 of the Code of Administrative Offences.

[x] Art. 5.60 paragraphs 2, 3, 4, and Article 5.61 paragraphs 2, 3, 4.

[xi] For example, in the case of Chemodurov v. Russia (Application No. 72683/01), the governor sued a journalist for characterizing his actions „abnormal". In the case of Krasuya v Russia (Application No. 12365/03), another governor sued journalists for defamation following an article in which he was accused of lobbying the town's legislature to change the appointment procedure of the town mayor. In the case of Grinberg v Russia (Application No. 23472/03), the governor of the Ulyanovsk Region sued a journalist for stating he was "waging war" against the independent media.

[xii] In Zaharov v Russia, Judgment of 5 October 2006, Application No.14881/03, and other defamation cases against Russia, the European Court of Human Rights pointed out that the Russian law on defamation made no distinction between value judgments and statements of fact.