‘Online is three times as dangerous as offline’ A human rights advocate explains Russia’s new limits on free speech

On March 18, Vladimir Putin signed two new laws penalizing Internet users who publish fake news or posts that show disrespect to the Russian government. Users who violate the new regulations would not face a criminal sentence, but they would be made to pay administrative fines. The two laws were approved two and a half months after the partial decriminalization of Article 282 of Russia’s Criminal Code. Certain parts of that law, which penalizes “inciting hate and enmity,” were shifted from their original, criminal status to become administrative regulations after a series of criminal charges were brought against social media users in response to provocative posts. Pavel Chikov, who leads the international human rights group Agora, told Meduza about the consequences of Article 282’s partial decriminalization and discussed the laws the Russian government may now use to limit freedom of speech.

What does it mean that Article 282 was decriminalized, and which statutes will functionally replace it?

The amendments that partially decriminalized Article 282, Russia’s criminal statute on inciting hate and enmity, went into effect at the beginning of January 2019. Since then, sentences based on that law have gradually been canceled, and the government has stopped pursuing new charges. That process will probably take several more months, and my estimates show that it will affect around 2,000 people.

In a February 2019 meeting with officials in the Ministry of Internal Affairs, Putin said that the police’s job at this point is to “stop pulling criminal cases out of thin air and start focusing on preventing extremism.” That suggestion can be interpreted as follows: “Don’t focus on detective work and research; focus on warnings and suppression.” In other words, work more on groups that are a risk for the government: young people with critical views, Muslims, and so on.

The decriminalization of Article 282 wasn’t called partial for nothing. On one hand, the criminal aspect really was eliminated to some degree: now, inciting hate enmity or degrading someone’s dignity is not a crime when committed for the first time. On the other hand, those actions are still a legal offense. Article 282 wasn’t transferred in its entirety from the Criminal Code to the Administrative Code, and that means it can still be used to bring criminal charges. For example, its second section is still active in criminal law.

The consequences of that decriminalization will undoubtedly be felt by people who were targeted by criminal cases or who were one step away from being charged. But they’re not the only ones who will notice a change: decriminalization will also affect the distribution of responsibility among law enforcement agencies. Previously, cases on the incitement of hate or enmity were handled both by Center E (the Center for Combating Extremism) and the FSB. Decriminalization introduced a strict border between the two. Right now, a new division of labor is forming between the fight against extremism and the fight against terrorism, and a change is also taking place in the way government politics deals with those two phenomena. Government politics will focus from here on out on the fight against terrorism while leaving the fight against extremism behind somewhat.

Imagine something like Maslow’s hierarchy of needs, but with only two parts. On the bottom, you have the many administrative violations that Center E handles. People accused of participating in illegal protests, unwanted organizations, insulting government officials, early-stage extremism, publications of Nazi imagery or other forbidden symbols, or illegal missionary activity would fall into that part of the pyramid.

The FSB will answer for the upper part of the pyramid. That part includes fewer cases, but the crackdown on them is tougher, and the punishments for them are harsher, all the way up to a life sentence. Here, you’re talking about criminal violations: participating in extremist societies like Hizb ut-Tahrir or New Greatness, founding terrorist organizations like The Network or Artpodgotovka, and justifying terrorism.

The FSB will work primarily with two laws: Article 280 (on “Encouraging extremist activity”) and Article 205.2 (on “Encouraging terrorist activity or public justification of terrorism”). However, it is more difficult to prove encouragement than incitement of hate or enmity — that is a narrower legal area, and it requires particular linguistic constructions that appear much more rarely than, say, language that degrades the dignity of some national or religious group. In 2017, 571 people were convicted under Article 282, 170 under Article 280, and 96 under Article 205.2.

Online resistance vs. offline resistance

When Andrey Klishas’s bill on disrespecting the government is added to Russia’s Code of Administrative Violations, it won’t be considered extremism-related in the direct sense of the word because the bill itself doesn’t use the word “extremism.” However, Center E will be the one dealing with these cases, which means that the official political perspective will see this as extremism or something like it. I think that we’ll be seeing a wave of administrative cases against insulting “His Majesty” and his court, and they will have big fines attached. Even the fine for participating in an illegal protest will be three times less. It’s like they’re telling us that criticizing the authorities on the Web carries major societal dangers and will be punished three times as harshly as criticizing the government at a physical protest. In other words, online is three times as dangerous as offline.

But we have to remember that those cases will not reach a mass scale. That’s because, unlike cases like the administrative penalties for participating in protests, the facts that must be proven here are much more complex. You have to analyze the text and order a linguistic examination, and that means spending additional money and effort. There’s no way to put together an administrative case around a report from a coworker as officers do with illegal protests because the text in question will always be unique.

By the same token, cases involving “participation in an undesirable organization” could also be considered extremism-related. There had already been quite a lot of administrative cases under that statute, but it was recently used to raise a criminal case for the first time. I’m talking about Anastasia Shevchenko, who was charged when she became the leader of the civic organization Open Russia [which is associated with the opposition leader and former oil tycoon Mikhail Khodorkovsky].

The problem here is that criminal cases in the “undesirable organization” category are a formality. If someone faces two administrative cases under that statute in the course of one year, the case automatically becomes a criminal one.

There’s no legal complexity here, but there is a political decision to be made: so far, 99% of all the “undesirable organization” cases only involve Open Russia. Based on that fact, we can conclude that there is enough political will to squeeze Open Russia dry, and activists in that organization face a serious threat [of prosecution].

I don’t yet see a risk that people will be prosecuted en masse under criminal law for participating in undesirable organizations. After all, a series of administrative cases has to be brought forward first before being transferred to criminal law, and that’s a three-step process, so it deprives the government of the ability to use that statute against a broad, disparate group of people.