Our lawyer Marina Agaltsova's comment
The law on foreign agent mass media, which also applies to individuals, leaves endless room for interpretation. The only hope is it will not provide viable due to its inherent inconsistencies.
In November 2019, the State Duma passed Bill 345523–7 «On introducing amendments to the Law of Russian Federation «On Mass Media» and the Federal Law «On Information, Information Technologies and Protection of Information» in the second and third readings. On 25 November, the bill was endorsed by the Federal Council. President Putin approved it as law on 3 December.
An explanatory note to the new law states that it was «developed with a view to improving the statutory regulation of the dissemination of mass information by foreign mass media». Article 1 of the law provides for amendments to paragraph 3 of Article 6 of the Law on Mass Media and regulates the matter of who can become a foreign agent media outlet.
How to Become a Foreign Agent?
Unfortunately, the new law offers a very ambiguous answer to the key question of when a person can be designated as a foreign agent media outlet. Article 6 of the Law on Mass Media, in its new version, first provides a general definition, according to which any person who receives foreign funding and distributes information for an undefined group of people can be considered a foreign agent media outlet.
Then the article returns to the question of foreign agent individuals, defining them as people who receive funding from foreign sources and distribute materials from foreign agent mass media, or their Russian subsidiaries, and take part in the creation of such materials. For the time being, the list of foreign agent mass media includes such outlets as Kavkaz. Realii, Krym, Realii and the TV channel Nastoyashee Vremya. But the article does not imply that only these organisations fall under the definition of foreign agent mass media. In fact, any person can be called a foreign agent if they:
Therefore, if a person distributes information — for example, publishing posts on Facebook or VKontakte, making videos for a YouTube channel, or providing commentary in a mass media outlet publication/broadcast — they already comply with the first criterion. The law does not discriminate content: any message intended for the general public falls under the agent’s first criterion. It does not matter whether the statement is in support of the authorities or the opposition, or whether it offers an opinion on growing apple tree seedlings.
The second criterion is also easy to fulfil. You could simply be receiving dividends on foreign shares, collecting rent from a flat in Minsk, or collecting compensation for expenses from organisers of an international conference. And if, for example, a person works for a foreign company or its Russian subsidiary, or is employed by foreign nationals, the second criterion of being an agent is even more evident. The most important thing is that a person receives payment for their services from foreign sources or from a Russian organisation that receives foreign funding.
The new law does not require proof whether the information distributed is done so in the interests of the foreign principal. The author of the original bill, State Duma member Leonid Levin, said that «in all cases when deciding on whether to put an individual on the foreign agents’ registry, the state body must prove the connection between the payment from a foreign source and the distribution of information by the foreign agent mass media». But the law does not directly require such a link to be proved. When looking at the history of NGOs already recognised as foreign agents, it is clear that the authorities never sought to prove such connections in the past.
The amount of payment or assets received also does not matter. In cases of NGOs recognised as foreign agents, even a 10,000 roubles (€150) transfer from an unidentified person from abroad was enough to establish foreign funding.
This means that the law is ambiguously constructed, allowing for the opportunity for the authorities to call anyone a foreign agent, even if they have the merest contact with international organisations or individuals, as well as with Russian organisations that receive foreign funding. Yet it is also evident that there are insufficient resources to target absolutely everyone. Apparently, the recognition process will start as a matter of necessity. The groups at risk includes:
As an international lawyer, I am genuinely worried about the prospective requirement to sign off not just as «Marina Agaltsova, Lawyer» but as «Marina Agaltsova, Lawyer, Foreign Agent». That’s why it is puzzling that the Federal Chamber of Lawyers has still not issued a statement regarding the law.
Fate of an Agent
What are the consequences of someone being recognised as a foreign agent? Article 2 of the law specifies the requirement to label any information coming from them as originating from a foreign agent, even if this information is published by a source belonging to a different person. In other words, if a Kommersant journalist interviews a foreign agent individual, the journalist will have to indicate in the article that their source was a foreign agent, for example: «Mr Innokentiy Kaplanov, founder of startup IT Pro, Doctor of Engineering, foreign agent, says that...». If the information is not labelled the publication must be taken down, according to the new law.
On 5 December the Russian Parliament adopted amendments to the Code of Administrative Offences. According to these amendments, if a person designated as a «foreign agent» fails to mark its publication, the fine shall be 10,000 roubles (€150 Euro). If the person fails twice, the fine is €750. If a failure is recorded more than two times per year, the fine will be €1500 or administrative arrest for up to 15 days.
Fines will be aggressively enforced, as is illustrated by the treatment of NGOs designated as foreign agents. International Memorial, which organises the annual ceremony «Restoring the Names», currently has nine proceedings launched against it for the absence of the foreign agent label on social media (minimum joint fine of 2.7 million roubles (€38,600). The same number of proceedings have been launched against a Memorial employee (minimum joint fine of 900,000 roubles — €12,800).
Apart from labelling the information, the law requires any individual considered to be a «foreign agent media outlet» to establish a legal entity, which will automatically be recognised as a «foreign agent» from the moment of registration. The law is yet to introduce sanctions for refusal to establish such a legal entity. But in my opinion, this does not much of a problem. When the requirement for NGOs to register as foreign agents was introduced, there were no fines at the beginning for failure to do so. But when it became clear that NGOs are not queuing up to register as «agents», fines were introduced. Now, if a legal entity is not registering itself, this will incur the same fine as for the absence of label (part 1 of Art. 19.34, Code of Administrative Offences).
Supporting a legal entity can be high-maintenance. From the moment of registration, it acquires the responsibilities of a foreign agent NGO, which means it must report to the Ministry of Justice about its activities quarterly. It must also conduct yearly audits and submit an auditor’s opinion to the Ministry. Failure to comply leads to an up to 300,000 roubles (€4,300) fine.
In addition to establishing a legal entity, labelling and auditing, there is one other unpleasant aspect — the attitude of the general public. An opinion poll by Levada Center (polling 1,600 participants) had this question: «In your opinion, what does the phrase „foreign agent“ mean?» 62% of respondents said that a foreign agent is «a spy, a member of foreign secret service, an undercover agent» or «a hidden enemy from within, who operates in Russia in the interests of other countries, the fifth column». This confusion is widely used by journalists of second-rate media outlets when they make lampoon reports about the work of «foreign agent» NGOs.
Not only journalists. State institutions use it as well. For example, the website of the Justice Ministry proudly featured this publication, where a statement about recognising an NGO a foreign agent was not-so-subtly illustrated by an image of a spy. The publication was taken down from the Ministry’s website, but it is still available on the website of the Justice Ministry Administration in Perm Krai, which reposted the publication.
What The Future Holds
Russia is not the first country to try to find agents among ordinary citizens. The US was looking for «red agents» among its own citizenry for much of the 20th century. In 1947, President Harry Truman signed Executive Order 9835, also known as the «Loyalty Order». The purpose of the Order was to root out Communist sympathisers from the government. The anti-Soviet paranoia in the US reached its peak in the early 1950s. Joseph McCarthy, a Senator from Wisconsin, embodied the paranoia.
By 1952, over 4 million people have become subjects to enquiries under the «Loyalty Order». 378 people have been fired. From May until December 1953, some 2,700 federal public servants were dismissed. By 1954, 6,900 more have lost their jobs. They were either sacked or left the service on their own following enquiries regarding themselves (source: Rackow, F., 1961. The Federal Loyalty Program: Politics and Civil Liberty).
However, when in 1954 McCarthy started targeting army leaders and White House officials, he faced a strong public outcry, which signalled the end of McCarthyism. The Senate eventually voted to censure him for discrediting the reputation of the legislature. The search for «red agents» fizzled out.
But let’s return to modern Russia.
We must only wait in hope that, in parallel with the US in the 1950s, some eminent individual within the system is found to be a foreign agent media outlet. This will lead to a huge scandal. Perhaps it will result in a push towards repealing or amending this strange, all-encompassing and obscure law. But until then, the number of foreign agents per square meter of Moscow and Saint Petersburg, where the risk group population is concentrated, is likely to skyrocket.