The EU Ban of RT and Sputnik: Concerns Regarding Freedom of Expression

On 2 March, the EU imposed sanctions against RT and Sputnik (Russian state-owned media outlets) because ‘RT and Sputnik are essential and instrumental in bringing forward and supporting Russia’s aggression against Ukraine’ In this essay, I wish to discuss whether the ban of these outlets in the EU is compatible with the principles of protecting freedom of expression under international and European human rights law. I shall elaborate (i) the scope of the ban, (ii) the legitimate aims, and (iii) proportionality. My intention is not to defend the Russian media or the Union. Rather, I will outline a few problematic aspects of the sanctions from a human rights law standpoint. I shall assume that both outlets may enjoy human rights, without discussing if they are ‘governmental organizations’ or not; individuals who wish to access their content certainly enjoy such rights.

The scope of interference

The Council of the EU adopted the Regulation and Decision by which it imposed sanctions against the Russian media. RT France (one of the RT’s subsidiaries) responded by initiating proceedings against the Council before the General Court. The interference into RT’s and Sputnik’s right to freedom of expression, and the rights of their audience, is broad. The EU acts prohibit ‘for operators to broadcast, or to enable, facilitate or otherwise contribute to broadcast, any content’ of RT and Sputnik (and their affiliates), ‘including through transmission or distribution by any means such as cable, satellite, IP-TV, internet service providers, internet video-sharing platforms or applications, whether new or pre-installed’. As can be seen, the sanctions apply to every feasible medium for content distribution. Other journalistic activities are permissible ‘such as research and interviews’ (recital 11). Although the outlets’ websites as such are not prohibited, the ban covers the online broadcast of content (streaming). The scope is even broader regarding the Internet since the Commission interprets the enacted acts as imposing the obligation for search engines to remove any RT or Sputnik content. Furthermore, any outlets’ content, as well as content re-posted by users, should be removed from social media platforms. It is worth noting that neither the Commission nor any other Union body made this expansive interpretation public. We learned about it via the Lumen database, and this lack of transparency has been criticized.

The Commission interprets the sanctions as enabling a media exemption, meaning that other outlets may use RT’s or Sputnik’s content to inform ‘readers/viewers objectively and completely’. However, the Commission does not mention other legitimate exemptions, for instance, academic research. This is odd since academic researchers enjoy special protection (ECtHR, Šeks v. Croatia, § 41). There is no artistic exemption either. Thus, for example, a disinformation researcher who re-posted some RT/Sputnik content on Twitter (or EJIL: Talk!) to expose it as disinformation could very possibly have that content removed from the platform.

In conclusion, although the sanctions are directed against the Russian media agencies, other subjects are being affected, namely, Internet intermediaries (i), Internet users (ii), and citizens that wish to follow the Russian outlets (iii). Speaking of the subject matter of sanctions, one should bear in mind that all content, even if it relates to sports, business, or art, shall be prohibited. In sum, the EU sanctions are exceptionally broad in their scope, covering all of the content of the two outlets and extending not just to them, but to anyone who would ‘broadcast’ their content. And the broader the sanctions, the more compelling the arguments should be for justifying the restrictions on freedom of expression that they impose.

Legitimate aim

Recitals of the documents depict two possible reasons for the sanctions: (i) disinformation and (ii) propaganda. The subjects to be protected are citizens and the public of the Union (recitals 6 and 7). These reasons cannot per se fall under the aims regarded as legitimate for restricting speech as prescribed by ICCPR or ECHR; the mere fact that speech is objectively false is not sufficient to restrict it. But by producing some specific harms, the spreading of falsehoods by the two Russian outlets may fall within the scope of one of the legitimate aims, e.g. public order or national security (spreading of false news undermining public order). Under Article 52 (1) of the EU Charter, the interference must pursue ‘objectives of general interest recognised by the Union’. In the Kiselev case, the General Court found that the sanctions against the applicant (an RT editor sanctioned for supporting Russian activities for destabilizing Ukraine) ‘met the objective referred to in Article 21(2) (c) of TEU (preserving peace, preventing conflicts and strengthening international security). Hence, the disinformation and propaganda might fit the broad EU Charter lines. Nevertheless, as Baade already noted, the Union should not invoke the prohibition of disinformation or propaganda as a legitimate aim. An alternative aim is more plausible – stopping propaganda for war.

Recital 7 ties the sanctions to propaganda for war – ‘in order to justify and support its aggression against Ukraine, the Russian Federation has engaged in continuous and concerted propaganda actions’. High Representative Josep Borell claims that ‘systematic information manipulation and disinformation by the Kremlin is applied as an operational tool in its assault on Ukraine’. In a result, spreading of disinformation (or manipulated news) evolved from ‘mere’ propaganda to war propaganda. The prohibition of propaganda for war is based on Article 20 (1) of ICCPR (‘any propaganda for war shall be prohibited by law’) and it may fall under Article 52 (2) of the EU Charter’s broad limb, although the Union did not specifically used the term ‘propaganda for war’.

But what is propaganda for war in the first place? Human Rights Committee’s General Comment no. 11 only notes that ‘paragraph 1 extends to all forms of propaganda threatening or resulting in an act of aggression or breach of the peace contrary to the Charter of the United Nations’ (§ 1; emphasis added). According to Nowak ‘propaganda for war’ includes intentional statements only, whereby intent ‘creates or reinforces a willingness to go to war, even if there is no objective, concrete threat of war’ (p. 473; emphasis added). These statements might include ‘incorrect or exaggerated allegations of fact’ (p. 472) In Kearney’s opinion, the classification of ‘the dissemination of false news’ as propaganda for war seems to be ‘an unwarranted and oppressive restriction on freedom of expression’ (p. 568-569). Hence, only ‘direct incitement to war’ qualifies as propaganda for war (here, p. 14 and here, p. 494).

To make a clear conclusion whether propaganda for war is a valid reason for the ban, we must see the nature of the outlets’ content – is it intentional dissemination of false news or manipulative/misleading content? Is it about inciting aggression? I will focus on RT only, since Sputnik did not challenge the sanctions. As a general matter, RT misleads ‘its audience and deflect from the issues at hand’, instead of airing straightforward false news. Take a look at RT’s articles about (alleged) biological laboratories that may be used as bio-weapons or about attacks on Roma people and other minorities depicting Ukrainian nationalism and intolerance. These articles are examples of manipulation or misleading content rather than straightforward disinformation or fake news. Some facts are true (e.g. laboratories exist and the attacks occurred), some are not (e.g. a Czech website devoted to the Roma population claims that they were attacked due to pickpocketing, not because of Ukrainian Nazi sentiment; there is no evidence of the laboratories’ bio-weapon potential), and some conclusions portray Ukraine as a bad/aggressive actor, attempting to create a certain degree of justification for the war.

We should remind ourselves that the ECHR ‘does not prohibit discussion or dissemination of information received even if it is strongly suspected that this information might not be truthful’ (ECtHR, Salov v. Ukraine, § 113). Bearing this in mind, it seems that the link of the outlets’ content with propaganda for war is loose or indirect. The outlets (RT at least) do not clearly advocate for war by providing misleading content; their language is subtle and allusive. False statements of Russian outlets’ might fit the concept, but only if such statements incite or encourage the illegal war. Misleading content might not be enough to reach the war propaganda threshold.

Proportionality

The total ban on broadcasting is the most severe measure against any media,  and would be problematic from the standpoint of the least intrusive measure rule implied in the concept of proportionality (ECtHR, Glor v. Switzerland, § 94). What could be less intrusive measures achieving the same aim? What about labeling content as Russian propaganda for the destabilization of Ukraine? Why is this not sufficient to combat the harms of this propaganda? In that way, EU citizens would be able to choose if they still want to follow the media. Further on, the regular notice and take-down procedure under Article 15 of the E-Commerce Directive could be an effective measure – each content qualifying as war propaganda could be removed.

Additionally, the EU sanctions are an example of general measures since the ban affects journalistic activities covering various fields, not just war-related content. Nevertheless, interference into the right to FoE should target a certain speech only, e.g. hate speech or calls for violence. For instance, the ECtHR criticized the ‘wholesale blocking of access to an entire website’ as an ‘extreme measure’ which could be compared to ‘banning a newspaper or television station’ (ECtHR, Vladimir Kharitonov v. Russia, § 38). One could argue that RT and Sputnik are persistent lawbreakers due to the fact that the Union has already ‘put sanctions on leadership of RT’ and ‘it is only logical to also target the activities the organisations have been conducting within’ (Borell) the EU. We have also witnessed fines and sanctions taken against RT in Member States. This is a valid argument, but not without weaknesses. First, Borell speaks only about RT, but what about previous sanctions on Sputnik for prior misconduct? I could not any. In addition, putting sanctions on journalists or editors (like Kiselev) is not the same as banning the whole media since the latter has a broader and deeper impact. Thirdly, the EU did not even try to enact the mentioned less restrictive measures. Only if these efforts fail to provide results does a blanket ban make sense. Hence, the sanctions could be narrower by aiming only at news regarding the war in Ukraine, while other content should be spared.

The necessity may be justified by the limited duration of sanctions since desperate times call for desperate measures. Namely, the sanctions are ‘justified on the ground of the situation and its temporary character’ (p. 2 of the Commission’s letter to Google; emphasis added). But the ‘measures should be maintained until the aggression against Ukraine is put to an end, and until the Russian Federation, and its associated media outlets, cease to conduct propaganda actions against the Union and its Member States’ (recital 10; emphasis added). It follows that even if the aggression ends, the ban will still stand depending on the cessation of propaganda against the EU and its MS. As a result, the sanctions do not seem to be purely about the war, but general propaganda and disinformation as well, thus weakening the argument that the prohibition of war propaganda serves as a legitimate aim.

Conclusion

I presented several pitfalls for the sanctions validity under human rights standards. The scope of the ban is extremely broad. The Council will have to put in a lot of effort to defend its stance on disinformation and war propaganda, as the legitimate aims are not self-evident. In terms of proportionality, less severe measures could arguably have done the job.

Speaking of the rights of RT viewers, people should be able to hear (if they want to) the ‘other side’, regardless of how ridiculous or grotesque their arguments appear. IHRL vests journalists with the right to express opinions and ideas that even ‘run counter to those defended by the official authorities’ (ECtHR, Khadija Ismayilova v. Azerbaijan, § 158).

European sanctions ‘might well set a precedent that authoritarian regimes can rely on for clamping down on more legitimate news networks’ (p. 1375). What a twist of fate – first the Union banned Russian outlets, and this precedent paved the way for Russia to do the same with Western media. To be clear, the EU sanctions are manifestly less stringent than criminal punishments on free speech imposed in Russia in recent days, so one should not compare them. But the risk of censorship in the Union stands. Moreover, there is skepticism regarding the sanctions’ role in shaping the future indefinitely. Sure, the sanctions are ought to be temporary due to the war in Ukraine (or do they, bearing in mind recital 10’s phrasing), but, as we all know emergency laws have a tendency to become normalized.