THE ONLINE REGULATION SERIES 2021 | RUSSIA

THE ONLINE REGULATION SERIES 2021 | RUSSIA

In 2020 and 2021, Russia significantly expanded its framework of online regulation with a set of new laws intended to both expedite the blocking of online content prohibited under Russian law and limit the scope for foreign companies to moderate content produced by state media. This has produced a complex legal environment, in which platforms are expected to comply with multiple legal requirements to avoid fines or having access to them blocked by the Roskomnadzor, Russia’s state body for overseeing media. Russia’s increased efforts to regulate tech platforms and online speech must be understood in the context of an already hostile environment for online platforms^[1], which are routinely throttled or blocked for Russian users altogether. This environment is being formalised and legitimised in statute by the 2020 and 2021 laws which consolidate penalties for non-compliance with Russian legislation. This was exemplified by temporary block of access to Twitter, in March 2021, for refusing to remove “banned content” which the Russian authorities said promoted drugs and suicide.[2]

Russia's regulatory framework:

• Federal Law No.35 "On Countering Terrorism", enacted in March 2006 and amended many times subsequently, with the latest amendment in 2020. Law No.35 is Russia’s primary legislation on counterterrorism. The law does not specifically address terrorist use of the internet.

• Federal Law No. 114 on combating extremist activity, enacted in 2002 and last amended in 2020. The law allows for the prosecution of individuals engaging in the public justification of terrorism or other terrorist activities.^[3] As with law No.35, law No.144 on extremist activity does not include specific provisions on terrorist use of the internet and online content.

• Federal law on "Information, Information Technologies and on the Protection of Information", 2006, also known as the IT law, lays out the basis of online regulation in Russia:

  • The law was amended in 2012 to introduce Art. 15.1, which is significant for its introduction of the statutory basis for content restrictions in Russia and the related internet “blacklist”.^[4]

  • In 2013, the law was amended again to introduce Art 15.3 which lays out the procedures for the office of the Prosecutor General to identify illegal content and refer the cases to the Roskomnadzor. The 2013 amendment was originally meant to target “extremist activities”; however, it has been significantly expanded since to include new categories of illegal online content.^[5]

  • Further amendments to the IT law were made in 2019, together constituting what is commonly known as the “laws on fake news”.^[6]

• December 2020 Amendment to the IT law, also known as the “Self-Regulation of Social Media law”, which strengthens Russia’s restrictions on online speech by consolidating legal requirements for platforms to detect prohibited content and comply with blocking orders.

• December 2020 amendment to the federal law on “measures to influence persons involved in violations of fundamental human rights and freedoms, the rights and freedoms of citizens of the Russian Federation”, known as the Dima Yakovlev Statute. This amendment aims to protect Russian state media presence online and block platforms that moderate Russian state media – see below.

• Amendment to the Code of Administrative Offences of the Russian Federation, introduced in December 2020 and enacted in January 2021, creates new administrative sanctions against hosting providers and owners of online websites failing to comply with Russia’s legal requirements on restricting access to content. Federal Law No. 1176731-7 “on the activities of foreign entities on the ‘Internet’ telecommunications networks in the territory of the Russian Federation” (hereafter, the “Foreign Social Media Law”), introduced in May 2021 and signed into law by President Vladimir Putin on 1 July 2021. The Foreign Social Media Law lays provides mechanisms, and tailored penalties in particular, to enforce the compliance of foreign social media platforms with Russian law.

Relevant national bodies:

• The Federal Service for Supervision of Communications, Information Technology and Mass Media, the Roskomnadzor, is Russia’s state body for media oversight. The Roskomnadzor is in charge of enforcing Russian laws relating to mass media and mass communications, including information technology. With regard to the online sphere, the Roskomnadzor handles blocking orders for prohibited content and oversees online platforms’ compliance with Russian legislation.

  • Roskomnadzor’s blocks prohibited content by instructing the hosting provider to issue a takedown notice to the website owner. If the content is not removed by the website owner, the Roskomnadzor can add it to the “blacklist” of online content which outlines what material all internet service providers must block in Russia. To block an entire website, the Roskomnadzor can simply add the website to that list.^[7] The “blacklist” is regularly updated by the Roskomnadzor.^[8]

  • The Roskomnadzor reports that from 2012 and April 2021 it blocked about 164,000 pieces of extremist content, including duplicates.^[9]

• In addition to the Roskomnadzor, different Russian authorities have the power to block or request the blocking of content – including the Ministry of Internal Affairs, the Prosecutor General Office, Courts, the Federal Agency for Youth Affairs (Rosmolodezh), and the Ministry of Digital Development, Communications and Mass Media. However, blocking orders are usually referred to the Roskomnadzor which sends the orders to platforms.

Key takeaways for tech companies:

Self-Regulation of Social Media law, 2020 Amendment to the IT Law ^[10]

• The Self-Regulation of Social Media law is the centrepiece of Russia’s online regulation. This law aims to limit access to illegal information in Russia.

• As such the law does not create new categories of prohibited online content, but reasserts and supplements existing Russian laws on regulating the online sphere and restricting access to prohibited online content.^[11]

• The law creates an official registry of social networks which are defined as “websites, or programmes for the electronic computational machines, which are intended for and/or used by their users for dissemination via users’ personal pages of information in the state or other languages of the Russian Federation; which can publish advertising targeting consumers based in the Russian Federation; and which are accessed daily by more than 500,000 users located in the Russian Federation”.

• To assess the size of the daily userbase of a social media platform, the law mandates the installation of special equipment to count users accessing the sites. These installations are to be provided by the Russian authorities, which can also request information about the owners of social platforms.

• The law considers that the owners of large social platforms are responsible for criminal offences committed by their users – including the dissemination of material containing public calls to undertake terrorist activities or publicly justifying terrorism, as well as other extremist material.^[12] The law creates various obligations for social media platform owners, including:

  • “Self-monitoring” of content on social networks in order to detect prohibited content.

  • Obligation to take measures “without delay” to block access to illegal content identified via self-monitoring.^[13]

  • Providing a point of contact for complaints in cases where illegal content is shared on the platform

  • Registration with the Roskomnadzor.^[14] There is a grace period of two months for the owners to comply with Russian legislation following the registration.

  • Annual reports on the complaints received, as well as on compliance with Russian legislation and on the proactive monitoring of content.

  • Term of Services (ToS) in full compliance with Russian legislation on content regulation. ToS should also be available in Russian, and all amendments should be notified to the users within 3 days.

• The Self-Regulation of Social Media law also requires platforms to have an appeal mechanism, whereby users can contest a platform’s decision to remove their content. The appeal is to be submitted firstly to the platform, whereupon a second appeal can be made to the Roskomnadzor which may instruct the platform to unblock the content.

• The Roskomnadzor will also organise its own monitoring of social network content.

• Non-compliance with the law is sanctioned on a case-by-case basis, taking into account both the severity and repeated character of the violation: sanctions range from “800,000 Russian roubles [about $10,724] to 1/5 of the company’s annual income.” ^[15]

Foreign Social Media Law

• In January 2021, President Putin tasked the government with creating additional rules for foreign tech platforms, including a requirement to have an office in Russia. The bill was introduced in the Duma in May 2021 and signed into law by President Putin in July 2021.

• The law explicitly targets social media giants operating in Russia and applies to platforms with a daily user-base at least 500,000 people in Russia. Reportedly, this law will affect 20 companies.^[16]

• Under the law, platforms must register an account on the website of the Roskomnadzor and open an office in Russia. This office is to act as the main liaison between the foreign platform and the Russian authorities.

• There are also specific penalties for foreign platforms that fail to comply with Russian law, and especially with laws on prohibited content and with Roskomnadzor’s blocking orders. Such penalties include advertising and payment bans, as well as the exclusion of the platform from search results.^[17]

2020 Amendment to the Dima Yakovlev Statute

• This Amendment gives Russian authorities the power to block websites from taking enforcement actions against or moderating Russian state media content.^[18]

• This Amendment is said to be a response to Twitter labelling Russian media outlets accounts as “state-affiliated”.^[19]

Amendments to the Code of Administrative Offences of the Russian Federation

• These amendments introduce administrative sanctions for platforms failing to comply with legal requirements on restricting access to content, including:

  • Fines of about $2.700 to $5,400^[20] for company executives;

  • Fines of about $11,000 to $54,000^[21] for corporate bodies / legal entities;

  • Between 5% and 20% of a company turnover for repeated offences.

• The amendments are unclear regarding whether it is for the company’s head office or for the Russian office to pay the fines, but what the Roskomnadzor has indicated is that “so far” the fines are calculated on the basis of revenue in Russia.^[22]

• As of June 2021, Meta had accumulated about $576,407^[23] fines for non-compliance, Twitter about $374,000^[24] and Google-Youtube about $80,430.^[25]

Tech Against Terrorism’s Analysis and Commentary

A complex and stringent regulatory framework

Russia’s online regulatory framework is complex, with relevant legal requirements for tech companies found across different laws. This is reflected in Russia’s recent increased regulatory efforts intended to ensure that tech companies comply with legislation on prohibited content: four key laws on online content governance and tech sector’s compliance were signed into law by President Putin in the six months between December 2020 and July 2021, with all but one of them passed by the end of January 2021.

Russia’s latest laws on online content and corporate compliance have explicitly targeted foreign and large social media platforms, with certain laws only applicable to foreign platforms or platforms with more than 500,000 daily Russian users. Smaller tech companies are not routinely expected to comply with the same requirements as larger and longer-established platforms.^[26] Furthermore, user-base size, when used as the sole criterion for determining whether a platform should comply with stringent legal requirements on monitoring online content, does not always fully reflect a platform’s resources and capacity to comply. This disregards the fact that platforms can sometimes grow exponentially in a very short period of time, without necessarily experiencing a commensurate increase in human and financial resources. Platforms’ resources should be considered separately to userbase size to ensure that smaller and newer platforms can efficiently tackle terrorist and violent extremist content online, without being penalised for lacking the resources of larger platforms.

Tech Against Terrorism recommends that policymakers account for both the user-base size, the feature set, and the platform’s technical and human resources to decide whether a platform should be required to comply with stringent legal requirements. Tech Against Terrorism also recommends that policymakers ensure obligations for tech companies are proportionate to size and capacity to avoid harming competition and innovation, and that the law therefore limits financial penalties for smaller or newer platforms.^[27]

Concerns for freedom of expression online

Digital rights advocates have raised concerns around online regulatory measures in Russia, with Article 19 stating that the new laws passed in 2020-21 “will further increase online censorship”.

In particular, Article 19 criticised the breadth of prohibitions on online speech in Russia, and the many possible “subjective interpretations” of the different legal requirements for platforms to remove illegal content in compliance with the Russian authorities’ removal orders. Article 19 also assessed that the provisions on limiting access to online content and blocking websites fail to meet international freedom of expression standards. Freedom House notes in its latest Freedom on the Net report that the Roskomnadzor regularly makes use of Russia’s legal framework on online content to require social media platforms to remove content from political activists, including Alexi Navalny^[28], Leonid Volkov (Navalny’s Chief of Staff) and Vladimir Milov.^[29]

Concerns about the 2020-21 laws on online platforms and content are similar to those raised by digital rights experts about online freedom of expression in Russia generally. Research on the state of internet freedom of expression in Russia has shown that the number of URLs on Russia’s blacklists has significantly increased since 2018.^[30] With the new laws on online regulation aimed at ensuring that platforms comply with blocking orders issued by the Roskomnadzor and with Russia’s restrictions on online speech in general, the number of URLs added to Russia’s blacklist and blocking orders are likely to increase in the upcoming years, whilst tech platforms operating in Russia will be further incentivised to comply with blocking orders. This risk was exemplified in January 2021, when the Roskomnadzor issued warnings to TikTok and VKontakte to remove content which called on under 18s to take part in a protest^[31], and also issued fines for Meta, Twitter, TikTok, VKontakte, Odnoklassniki, and YouTube for not removing a total of 107 pieces of “illegal content”. The same month, the Russian government sued Facebook, Google, and Twitter for refusing to remove “banned content” about an opposition protest^[32].

By allowing Russian authorities to block access to non-compliant platforms in Russia, the laws passed since December 2020 further establish platform blocking as an integral part of the country’s content regulation strategy. Whilst website blocking is not new in the government’s strategy for enforcing compliance with Russian laws and government orders,^[33] the process in question is now being formalised as a means to ensure tech sector compliance. However, the practices of website blocking and throttling ^[34] contravene international human rights law according to AccessNow, which notes that a series of court rulings by the European Court of Human Rights on Russia’s blocking of websites state that “broad, collateral blocking of websites is an extreme and disproportionate measure that violates freedom of expression and the right to an effective remedy”.^[35]

Provisions on pro-active monitoring of content

The provisions on platforms’ self-monitoring of social network content in the Self-Regulation and Social Media Law effectively mandate platforms to proactively monitor their services to detect content prohibited under Russian law. As Tech Against Terrorism has noted throughout the first and second edition of the Online Regulation Series, including in our recent entry on Indonesia, an increased reliance on automated moderation solutions  raises the risk of false positives in taking down content that is legal and raises questions about the accountability of removal decisions.

^[1] Freedom House reports that Russian authorities “routinely block access to sensitive political and social content on the internet” and restrict access to social media and communications platforms.

See: Freedom House (2021), Freedom on the Net Report: Russia.

^[2] The block was eventually lifted but Russian authorities continued to throttle Twitter traffic on mobile networks.

Freedom House (2021)

^[3] F. Syed Kouh Keivani (2016), A strong offence is the best defence? Russia’s strategy towards countering terrorism in the North Caucasus. Leiden University.

^[4] This lists “information circulation which is forbidden in the Russian Federation”. See the section on Key National Bodies below. The 2012 Amendment prohibits online material that  calls for “extremist activities”, as well as for riots and “unsanctioned” protests”. See: European Audiovisual Observatory (2021), Regulation of Social Media in Russia.

^[5] European Audiovisual Observatory (2021)

^[6] The 2019 amendments prohibit the dissemination of false information and content that would create a “a threat or harm to life and (or) the health of citizens, property, the threat of mass disturbance of public order and (or) public security, or the threat to operation of life support facilities, transport or social infrastructure, credit institutions, energy facilities, industry or communications.”  See: European Audiovisual Observatory (2021)

^[7] Freedom House

^[8] European Audiovisual Observatory (2021), Regulation of Social Media in Russia.

^[9] European Audiovisual Observatory (2021), Regulation of Social Media in Russia.

^[10] Article19 (2021), Russia: Laws enabling massive online censorship must be repealed.

^[11] The list of prohibited content in Russian law is broad and includes, amongst other prohibitions, extremist and terrorist content, as well as calls for riots and for youth to participated in unsanctioned protests. See: Human Rights Watch (2021), Russia; Social Media Pressured to Censor Posts;’ and Article19 (2021), Russia: Laws enabling massive online censorship must be repealed.

^[12] European Audiovisual Observatory (2021)

^[13] This requirement for immediate action may be waived if the owner cannot assess whether the content is prohibited under Russian law. In which case, the owner has 24 hours to refer the discovery of potentially prohibited content to the Roskomnadzor which is to decide on the legality of the content. If the Roskomnadzor assesses the content to be prohibited, the owner of a social network shall restrict access to it.

European Audiovisual Observatory (2021)

^[14] Once a platform is registered, the Roskomnadzor will determine the identity of the owner, with a view to notifying the owner of their inclusion in the register as well as the relevant provisions of Russian law.

^[15] Article19 (2021), Russia: Laws enabling massive online censorship must be repealed.

^[16] Reuters (2021), Putin signs law forcing foreign social media giants to open Russian offices.

^[17] EY Global (2021), Russia: Law on activities of foreign Internet companies in Russia signed by the President.

^[18] Slamacha Becca (2020), Russia passes laws to restrict US social media influence, Jurist.org.

^[19] Wamsley (2020)

^[20] 200,000 to 400,000 RUB

^[21] 800,000 to 4 million RUB

^[22] European Audiovisual Observatory (2021)

^[23] 43 million RUB

^[24] 27.9 million RUB

^[25] 6 million RUB

^[26] However, some of the legal provisions enacted in 2021, including the fines for non-compliance included in the Amendments to the Code of Administrative Offences of the Russian Federation, will apply indiscriminately to all platforms without consideration for the size of their userbases.

^[27] See: Tech Against Terrorism (2021), The Online Regulation Series Handbook (pp. 9 – 12).

^[28] In June 2021, the Russian government banned political organisations linked to Alexei Navalny, classifying these organisations as “extremist”.

See: BBC News (2021), Alexei Navalny: Moscow court outlaws 'extremist' organisations.

^[29] Freedom House (2021).

Vladimir Milov is an opposition politician and economic advisor to Navalny, Milov is a former member of the Russian Government and Deputy Minister of Energy

^[30] Going from 161,00 internet pages banned in 2018 to almost 273,00 in 2019. Unofficial data for 2019 further raised the number of banned internet pages to 474 million. 

See: Voda Matej (2020), Russia’s Internet, already dim, gets darker, Coda Story; and Freedom House (2021).

^[31] Human Rights Watch (2021), Russia; Social Media Pressured to Censor Posts.

^[32] Freedom House (2021)

^[33] A landmark example of Russia’s blocking of online platform is the blocking of Telegram, originally a Russia-based platform before moving its headquarters outside of Russia and establishing itself in Dubai: For instance, Telegram was banned in Russia from 2018 to 2020, following an April 2018 court order to provide its encryption keys to the authorities and comply with the Yarovaya law. The ban was lifted in 2020, with the government citing Telegram’s founders’ “readiness” to “counter terrorism and extremism”. Telegram later moved its headquarters to Dubai in 2021. Platforms were also blocked in the course of a campaign initiated by the National Security Authorities in 2020 to ban encrypted emails, including TutaNota and ProtonMail, arguing that these services were facilitating calls for extremist activities.

See: Freedom House (2021)

^[34] Bandwidth throttling, or the slowing down of internet connection to access a particular service, has also been used by the Russian authorities to enforce compliance.
See: Bahar Zen (2021), Bandwidth throttling — what is it and how to stop it, NordVPN.

^[35] Krapiva Natalia (2021), Russia throttled Twitter to censor content — Here’s what happens next, AccessNow.