Requiring media to register as ‘foreign agents’ poses threat to free speech

ARTICLE 19 is concerned about proposed amendments to the Russian ‘Foreign Agents’ Law that could paralyse foreign media outlets operating in the country. Russian parliamentarian proposed the amendments in retaliation for Russia Today (RT) being required to register under the US Foreign Agent Registration Act (FARA).  The US Department of Justice (DOJ) required FARA registration by RT following a determination by US intelligence agencies that the television channel acted as ‘Russia’s state-run propaganda machine.’ These actions endanger media freedom globally by overtly politicizing foreign-funded media.

“The ability to access and impart information without frontiers, including across borders, is integral to the right to freedom of expression”, said Katie Morris, Head of Europe and Central Asia at ARTICLE 19. “Political efforts to label media outputs as propaganda are always of concern, as they are open to abuse. The proposed Russian law is particularly troubling given the deplorable environment for independent media in the country; however, requiring RT to register as a foreign agent in the US also fails to uphold international human rights standards.”

In the United States, state-funded Russian TV channel RT announced on 13 November that it had registered as a ‘foreign agent’ in the United States, in compliance with an order from the US Department of Justice. In January 2017, US Intelligence agencies described RT as acting as “Russia’s state-run propaganda machine”, alleging that the channel had contributed to Russian state interference in the US election campaign. The Department of Justice then issued an order under the Foreign Agent Registration Act (FARA), requiring RT America to register as a foreign agent.

FARA was first introduced in 1938 in a bid to counter Nazi propaganda. It requires ‘agents representing the interests of foreign powers’ in a ‘political or quasi-political capacity’ to disclose their relationship with the foreign government and information about related activities and finances.

FARA requires companies (including media outlets) that are owned or controlled by a foreign government or other foreign entity to register with the Department of Justice and to submit six monthly reports on its financial relationship with that actor. The company or media outlet is also required to label ‘informational material’ with a statement that the information is disseminated on behalf of the foreign government or actor. Failure to comply with FARA could result in a fine of up to $10,000 or imprisonment of up to five years; however, the DOJ prefers voluntary compliance, and there have only been seven prosecutions under the Act since 1996.

In addition to submitting standard financial disclosure forms, RT will now be required to include a public disclaimer on all information that they transmit.  While the Justice Department has stated that RT would only be required to meet the standard submission deadlines every six months, Section four of FARA could be used to compel RT to file a copy of their productions with the Justice Department within 48 hours of transmission. FARA’s vague wording leaves it ambiguous what types of publications this would cover; however, RT could be obliged to abide by these requirements for every social media post, online article and broadcast they produce. This would clearly impose an unreasonable burden on the channel.

RT has announced that they will mount a legal challenge against the order, which has sparked strong criticism within Russia.

In Russia, last week legislators announced that they were drafting amendments to Russia’s infamous 2012 ‘Foreign Agents Law’, extending its provisions to foreign-owned media outlets.  These amendments have been portrayed as a ‘tit-for-tat’ retaliation in response to the RT registration in the US. These amendments were approved on 15 November by the lower house of parliament. They must now be approved by the Upper House of Parliament, before being signed into law by President Putin. It is understood that the Upper House will discuss the amendments on Wednesday 22 November.

The Foreign Agents Law currently requires all Russian NGOs receiving foreign funding and engaged in loosely defined ‘political activities’ to register as ‘foreign agents.’ NGOs must indicate their ‘foreign agent’ status in publications, and are subject to onerous reporting requirements, special inspection orders, and restrictions on the activities they may undertake. Criminal and administrative sanctions for non-compliance includes, inter alia, fines of up to 500,000 roubles ($16,000) or imprisonment of up to two years.

The amendments would extend this legislation to cover media outlets registered in foreign countries, and receiving funding from a variety of foreign actors. Once registered as a ‘foreign agent’, the outlet would be obliged to label all transmissions and publications as produced by a ‘foreign agent’.

Since its introduction in 2012, Russia has actively enforced the Foreign Agents Law, in order to severely restrict the activity of independent non-governmental organisations, working in diverse spheres. There are currently 87 organisations listed as ‘foreign agents’. Many have faced heavy fines and costly litigation. In May 2017, three organisations were reported to have been liquidated for violating the legislation; and in June 2017, criminal charges were brought against Valentina Cherevatenko, head of ‘Women of the Don’, a human rights and peacebuilding organisation, for violating the legislation, although the case was later closed.

The proposed amendments are particularly concerning in light of the extremely hostile environment for independent media working in Russia. The Russian authorities control the media landscape, with most media outlets owned by the state or their close affiliates. Only a few independent media outlets remain, broadcasting online or publishing to minority audiences; however, others have moved abroad, or been forced to close or change ownership and/or editorial position. Independent journalists also face violence and harassment. In this context, foreign registered media play a critical role in ensuring the public has access to diverse viewpoints, and the legislation represents another attempt to ensure state dominance of public discourse.

ARTICLE 19 notes that governments often claim that restrictions on foreign media are justified on the groups of national security or they want to protect their citizens from foreign ‘propaganda’. However, we observe that these restrictions are rarely compatible with international and regional human rights standards. Moreover, we note that countries adopt regressive legislation this can spark copycat legislation, and as such we call on legislators to be aware of the global implications of their domestic actions.

Under Article 19 of the ICCPR, everyone has a right ‘to seek, receive and impart information and ideas through any media and regardless of frontiers.’ In other words, the exercise is not limited by national borders.

International human rights standards allow, under Article 19(3), for narrowly defined restrictions to freedom of expression: first, the interference must be in accordance with a law; second, the legally sanctioned restriction must protect or promote an aim deemed legitimate in international law; and third, the restriction must be necessary for the protection or promotion of the legitimate aim. This is known as the three-part test.

While neither initiative complies with international standards on freedom of expression, their respective impact on the media environments in Russia and the US is not equivalent, given the decimation of independent media in Russia. We note that democratic societies depend on the free flow of information and ideas and restricting freedom of media does not bring stability. Instead it fosters discontent at the suppression of fundamental human rights and foments instability.