The HRC called on the Federation Council to reject laws on the spread of fakes and disrespect for authorities online

The Human Rights Council sent expert opinions on the "Klishas package" to the Federation Council.

On March 11, 2019, the Presidential Council of the Russian Federation for the Development of Civil Society and Human Rights (HRC) sent expert opinions to the Federation Council on a package of laws on the dissemination of false information and indecent behavior on the Internet. The HRC asks the upper house of parliament to reject these laws and send them for revision within the framework of a conciliation commission.

A package of four bills submitted to the State Duma by United Russia senators Dmitry Vyatkin and senators Alexander Klishas and Lyudmila Bokova was adopted in the third reading on March 7. The laws approved by the Duma provide for the introduction of: media liability for the dissemination of unreliable information; procedures for deleting such information; punishment of citizens for indecent statements that offend society, the state, state symbols and civil servants; blocking such statements.

Commenting on the laws on the dissemination of false information, the HRC notes that between the amendments to Art. 15.3 of the Law "On Information" and new parts of Art. 13.15 of the Code of Administrative Offenses, there are differences in wording: only knowingly false information will be administratively punished, and any false information will be blocked, regardless of the intent of the distributor, that is, it is assumed that Roskomnadzor and the prosecutor's office know the absolute truth, although what seems unreliable today may be true tomorrow. At the same time, the media will have to immediately delete information upon receipt of the request from Roskomnadzor, and the owners of all other resources will be discriminated against, since they will not get a chance to voluntarily delete it at all. Moreover, the use of the word "immediately" can lead to the fact that entire sites that could not immediately remove information for technical reasons, will be blocked. At the same time, even if the information was deleted, the laws do not exclude the possibility of being held liable under Art. 13.15 of the Code of Administrative Offenses, if the protocol was drawn up before the information was deleted.

In addition, the very wording "knowingly unreliable information" suggests that its publisher has precise knowledge about the inconsistency of this information with reality, the HRC writes in its conclusion. However, according to the legal position of the Supreme Court, "information that does not correspond to reality" did not take place in reality at the time to which the disputed information relates, and "unreliable statements" are generally not worthy of believing in their correspondence to reality - that is, the category of reliability has more attitude to trust in the source of information than to its objective truth. Therefore, it is likely that under Art. 13.15 of the Code of Administrative Offenses will bring to justice those who had reason to believe that the information disseminated was true, for example, in cases of disasters, when even the competent state authorities do not have an accurate information picture. " At the same time, an arbitrary recognition by the court of the fact of deliberately unreliable information will lead to the fact that the court will have to interfere in such issues far from the law as faith and trust. This will inevitably lead to a violation in such cases of the constitutional rights of citizens to the freedom to receive and disseminate information, to freedom of speech, freedom of opinion and freedom of the mass media (Article 29 of the Constitution of the Russian Federation) ", the HRC emphasizes.

It is difficult to establish a causal relationship between the dissemination of false information and the emergence of threats to the life and health of citizens, threats of mass disturbance of public order and other events listed in the law, and it is not clear how such threats will be established, HRC experts believe.

They further note that the practice of applying Art. 10 of the European Convention on Human Rights does not allow restriction of the right to freedom of expression solely on the grounds of the unreliability of the information disseminated (the case of "Salov v. Ukraine" in the European Court of Human Rights).

Journalists are already banned from using their rights to spread rumors under the guise of truthful reporting, while the journalist acts in the context of his rights to collect information and his obligation to verify information - and responsibility for spreading rumors - is already provided for in the codes of professional ethics of journalists. Persons who are not journalists have much less opportunity to verify information, the authors of the opinion emphasize.

Then they write that the amount of fines for legal entities under the new parts of Art. 13.15 of the Code of Administrative Offenses will be too large and for many media outlets it will be tantamount to ruin. At the same time, for network resources and companies, unlike foreign ones, blocking is tantamount to ruin - thus, their competitiveness decreases, which means that the laws directly contradict the presidential strategy to reduce the administrative burden on companies and create elements of the "digital economy" in Russia .

The norms on liability for the dissemination of false information also seem to the HRC to be redundant, because public calls for illegal actions can be qualified under Art. 280 (public calls for extremist activity), 205.2 (public calls for terrorism), Part 3 of Art. 212 of the Criminal Code (riots), Art. 20.29 of the Code of Administrative Offenses (mass distribution of extremist materials), etc.

The HRC believes that the best way to counteract fake news is promptly informing the public by the authorities and the availability of independent expert opinions, the society is ready to sort them out on its own, and " making managerial decisions without proper public discussion will only increase social instability in society ."

Finally, it is noted that the reference in the explanatory note to the European Commission's strategy to combat online disinformation is incorrect: its measures are only positive, not prohibitive.

Laws on indecent behavior on the network HRC called for rejection on the following grounds. First, they do not meet the criteria for restricting the constitutional rights and freedoms of man and citizen. " Restrictions on freedom of expression can only be justified by a clear, urgent and definite social need. It is not clear from the text of the explanatory note to the bills what specific legitimate goal their authors are pursuing," the authors of the HRC conclusion say .

In oral remarks, one of the authors of the laws, Senator Lyudmila Bokova, explained the need for their introduction, comparing it with the responsibility for petty hooliganism. However, the dissemination of information in itself does not violate public order. State Duma Speaker Vyacheslav Volodin explained the introduction of additional restrictions by the need to " respect the choice of the people " and " the inadmissibility of insulting the people " who " elect the government ", but such goals of restricting freedoms are not provided for in Art. 55 of the Constitution.

Secondly, the introduced restrictions are redundant. " An attempt by the state to regulate the stylistic features of communication between citizens on the Internet will require an unjustified investment of huge funds in the fight against everyday rudeness, which cannot be eradicated by means of administrative or criminal repression ," the HRC concluded. At the same time, liability for insult is already provided for in Art. 5.61 of the Code of Administrative Offenses, for insulting a representative of the authorities - Art. 319 of the Criminal Code, for desecration of the coat of arms and flag - Art. 329 of the Criminal Code, and in order to protect the honor and dignity, civil servants can apply to the court with claims under Art. 152 GK.

Third, these restrictions on freedom of speech and opinion are disproportionate. The request to block the site and remove content is an example of an interference with freedom of speech, which is justified only if it is “necessary in a democratic society”, that is, it must come from a “pressing social need” that must be convincingly established, HRC experts write . However, negative statements can be the result of citizens' dissatisfaction with the actions of the authorities, to which they are fully entitled, and, according to the standards of the Convention, the restriction of debate on matters of public interest requires very good reasons. In addition, both national and international judicial practice proceed from the permissibility and desirability of sharp criticism of statesmen, and in relation to the government, according to both the ECtHR and the Supreme Court of Russia, the boundaries of permissible criticism are even wider. The lower courts also actively rely on these legal positions. Finally, the provisions of Art. 10 of the Convention on Freedom of Expression also applies to offensive and shocking information.

In addition to all this, the HRC noted that the concepts introduced by laws on indecent behavior have legal uncertainty. The wording "an expression of obvious disrespect in an indecent form" can be interpreted as broadly as possible, the addition of the phrase "which offends human dignity and public morality" does not clarify it, and the legal meaning of the concept of "clear disrespect" is generally unclear, the HRC concludes. " In particular, it is not clear whether caricatures, anecdotes, sketches, reprises, parodies will fall under the scope of the draft article. Accordingly, it is not clear what disrespect for state symbols and, moreover, for the Constitution of the Russian Federation should be expressed. There are many those who sharply criticizes both individual articles of the Constitution and the document as a whole. The Constitution itself created the legal basis for the freedom of such discussions ," the expert opinion says.

Sources

• HRC asks Federation Council to reject bills to punish fake news and disrespect for authority // HRC website. March 11, 2019