MEDIA CENSORSHIP OP-ED
Freedom of expression is under threat in Russia’s war against Ukraine
This article is Part One in a three-part series relating to the Russian invasion of Ukraine and the impacts on freedom of expression and media freedom. Part One focuses on censorship of the media; Part Two will deal with access to online platforms in an age of cyber-warfare; and Part Three will explore the treatment of hate speech, propaganda, mis- and disinformation.
The Russia-Ukraine war undoubtedly has, and will continue to have, devastating impacts on countless people. The list of human rights violations grows, and the deplorable actions of Russian forces, in violation of international and humanitarian law, should be condemned in the strongest terms.
Media censorship as a tool of war
Against this backdrop, the right to freedom of expression has not been spared from the casualties of war.
In a Joint Statement on Human Rights and Fundamental Freedoms in Russia presented to the United Nations Human Rights Council, the state parties expressed their shock at the growing restrictions that Russia has placed on access to reliable and credible information, including through censorship of the media.
With the enactment of oppressive laws, the stifling of criticism and pressure being placed on independent media outlets, there have been numerous unashamed violations of freedom of expression in efforts to suppress its power to enable people to organise, make informed decisions and counter false information.
Media censorship has long been relied on during wartime.
It is recorded that World War 1 was the first instance that mass media played a role through the circulation of newspapers in a time before radio, television or the internet. Even then, certain laws, such as the United Kingdom’s Defence of the Realm Act, 1914, sought to control what could be reported on by the press, with this being just one of many examples of censorship being an indispensable tool relied on during wartime to engender public support.
Those who argue in defence of censorship in times of war advocate that it is meant to prevent sensitive information from being relayed to the enemy, and to keep up civilian morale by shielding the public from bad news. In counter-argument, others contend that censorship keeps people in an atmosphere of ignorance, allowing for indoctrination and public agreement with the necessity of war.
Media censorship typically stands in conflict with freedom of expression.
The right is broadly protected under international law, primarily through article 19 of the International Covenant on Civil and Political Rights (ICCPR), which guarantees the freedom of all to speak and impart information of all kinds, regardless of frontiers or medium. Any restriction on the right must meet the three-part test of legality, necessity and proportionality. Added to this, article 20 of the ICCPR provides that the right to freedom of expression does not extend its protection to propaganda for war or advocacy of hatred that constitutes incitement to discrimination, hostility or violence.
While the ICCPR permits derogations from the right to freedom of expression in times of emergency, this is rendered subject to certain caveats, including that this must be strictly required by the exigencies of the situation. Russia has not, however, declared a nationwide state of emergency and is therefore not lawfully permitted to completely depart from any fundamental rights.
Media freedom is a critical element of the right to freedom of expression, owing to an acknowledgement of the indispensable role that the media plays in providing and disseminating information of public importance and being a watchdog over the exercise of power.
The reportage of the persistent attacks on media freedom that arise from this war is therefore alarming and distressing.
Restrictive laws that undermine media freedom in Russia
Russia has not historically had a good track record on media freedom: in the 2021 World Press Freedom Index, Russia ranked 150th out of 180 countries, owing to what was described as a stifling atmosphere for independent journalists, with major television channels inundating viewers with propaganda.
This situation has now been exacerbated by new measures, carrying significant penalties, to tighten control over the media, including criminalising any “false news” about the army; criminalising any calls for sanctions; and an order by the Communications Regulator that only information provided by official sources may be published, and insisting on the use of the term “special military operations” instead of “war”.
At least three people have reportedly been charged under the new law, with one particular incident relating to an editor displaying a sign on set saying “no war”, who was then questioned for 14 hours without access to legal assistance, fined 30,000 roubles, and is now potentially facing criminal charges for spreading “fake news”.
Russia has clearly adopted a harsh stance of restricting freedom of expression. In the Joint Declaration on Freedom of Expression and “Fake News”, Disinformation and Propaganda, the mandate-holders on freedom of expression stressed that general prohibitions based on vague and ambiguous terms, such as “false news”, are incompatible with international standards on freedom of expression and should be abolished.
Contrary to this, Russia’s conduct has forced journalists to choose between the invidious options of adhering to the state’s narrative, ceasing operations, not reporting on the war or facing criminal charges.
Decimation of independent media outlets in Russia
Media outlets committed to independent and credible journalism are essential for informing the public. However, bias in the media remains a point of contestation that is particularly polarising between those who support and those who criticise state authorities.
The crackdown on independent media outlets renders state-sponsored media among the only sources of information at present. This has reportedly influenced the Russian public’s stance in favour of the war, with reports of the so-called “propaganda machine” having convincingly portrayed the West as an aggressor, with Russia’s role described as a “special operation of liberation”.
It also appears that state media newscasts are typically slickly produced, sometimes seeming to offer opposing views but ultimately punting the government’s stance.
In stark contrast, independent media outlets have faced unprecedented and escalating attacks since the start of the war.
As noted by Amnesty International, the measures taken by Russia to block critical media outlets, close independent radio stations, force journalists to halt their work or leave the country, as well as to block online social media and news platforms, have almost completely deprived the Russian people of access to objective, unbiased and trustworthy information.
The Communications Regulator has reportedly banned at least 32 websites, relying on an order by the Prosecutor-General to block outlets that carry “false information”.
As a result, various news outlets have suspended their operations in Russia, with reports of the treatment of independent domestic outlets being particularly chilling, including threats, harassment, intimidation and pressure to stop the criticism of the government or the war.
In a particularly poignant broadcast, TV Rain ended its final programme with the words, “No to war”, as the station’s employees walked out, followed by a recital of Tchaikovsky’s “Swan Lake”.
Consequently, journalists continuing their reportage of the war have been forced underground or fled to neighbouring countries. Some independent journalists have reportedly remained in Russia, but their reports are only being used to a limited extent out of concern for their safety.
As noted by the BBC, the decision to resume its English-language reporting from within Russia weighed the balance between the new legislation and the urgent need to inform the public from within the country.
The fundamental role of independent media outlets is to offer a diversity and plurality of views; where the media is not independent, this risks one-dimensionality and a consistent voice of those who own and control it.
The dire reality for journalists reporting on this war comprises a treacherous line between safety and acting in the public interest, with media freedom remaining under grave threat.
Response from the Council of the European Union
In response to Russia’s measures, the Council of the European Union (EU Council) issued Council Regulation 2022/350 and Council Decision 2022/351. In similar terms, the Regulation and the Decision express concern that Russia has engaged in a systematic, international campaign of media manipulation and distortion of facts, and that these actions have been channelled through media outlets under the control of the Russian Federation.
The EU Council therefore suspended the broadcasting activities of RT (formerly known as Russia Today) and Sputnik, and further prohibited operators from broadcasting any content by RT or Sputnik, including via internet service providers or online platforms.
This unprecedented measure by the EU Council has been contentious. Those in support attribute it to RT and Sputnik being part of “the Kremlin’s media machine” and necessary “to ban their toxic and harmful disinformation”; those against, including RT France which is challenging the ban, argue that this is its own form of censorship.
As noted by the International Press Institute (IPI), while these measures may be “understandable and well-intentioned”, this overlooks the fundamental principle that any media ban should only be taken by independent regulators.
IPI expressed further concern that this ban may lead to reciprocal measures from Russia and emphasised that the best way to counter state-sponsored disinformation is to foster independent journalism.
It has also been highlighted that media bans must be subject to a high level of scrutiny, with there likely being remaining questions of the wisdom and effectiveness of these measures in the long term.
This begs the question of the role that governments should play in combating propaganda and disinformation. A seemingly knee-jerk reaction — notwithstanding the intention — gives rise to concerns of state overreach. Notably, the right to freedom of expression extends to information or ideas that offend, shock or disturb.
While it may be argued that the broadcasts on RT and Sputnik fall within a category of unprotected speech, such as propaganda for war, this requires further interrogation.
First, there is no express reference to this reliance in either the Council Regulation or the Council Decision. Additionally, the distinction between propaganda for war and bias is not clear cut, particularly given that there is no commonly accepted definition of “propaganda”.
One should therefore distinguish between propaganda for war that is prohibited under international law and demands appropriate action in line with international standards, and other forms of propaganda that may be inappropriate or scornful, and may damage the profession of journalism, but do not necessarily call for legal action.
While the media restrictions and limited access to information within Russia present myriad challenges, the gravity of the restrictions imposed by the EU Council raises at least three important questions: whether the ambit of the powers of the EU entitles it to issue such a ban; what precedent this may set in relation to freedom of expression; and what impact this may have on the trust and credibility of the media.
Safeguarding the right to freedom of expression in times of conflict
Media censorship stands as predominantly inimical to the exercise of the right to freedom of expression.
In particular, it remains unclear how long President Putin will be able to control the narrative of his “special operation”, particularly as the sanctions on Russia begin to affect the public and reports of the deaths of Russian soldiers become known.
This may indeed create an impetus for members of the public to seek out independent media reports from outlets that are not state-sponsored.
As the toll of this war continues to affect journalists, the steadfast commitment of those who continue their coverage of the war is deeply commendable.
Throughout history, independent and credible media reportage has served as a bastion against authoritarianism, particularly in times where truth has become a casualty of war — with freedom of expression and the free flow of information being key allies in any fight against oppression. DM
Avani Singh is an independent legal consultant specialising in digital rights. William Bird is the director of Media Monitoring Africa. The authors write in their personal capacities.