“It is important to engage experts because the Court’s degree of trust regarding non-legal matters lies with the experts of those fields.” – Elena Ovchinnikova

Background

In a victory for free speech in Russia, the Kirovsky District Court in Yekaterinburg recognized the need to protect satirical publications by lifting the ban on the circulation of a satirical online article titled ‘How to give and take bribes and not get caught’ from the website of Oblastnaya Gazeta, a regional media outlet.

Facts

In November 2017, the Oblastnaya Gazeta, a regional newspaper and media outlet based in Yekaterinburg, published a satirical article on their website titled ‘How to give and take bribes and not get caught’. The article was published as a joint project between Oblastnaya Gazeta and Krasnaya Burda, a publication famous for its satirical projects and often critiqued for the social critique it represents. The article depicted public servants asking for bribes with jokes such as:

“Very sorry! I’m sorry I can’t help you, Although I could. But I cannot! Or can I? How do you think?…..My hands itch, that is how much I want to help you. So I wanted a number….. 1,000,000. But they gave 100. And I want 1,000,000. Do you have it? Then I can help you.”

A prosecutor based in Khvalynsk in the Saratov region considered the publication illegal since it allegedly contained instructive information about offering and receiving bribes. Russia’s Federal Law on Information, Information Technologies and Information Protection allows prosecutors in any region of Russia, regardless of their geographical proximity to the publisher, to initiate proceedings to have information declared illegal for dissemination. Based on this law, the prosecutor requested the Volsky District Court in the Saratov region to impose a ban on the circulation of this online article, even though Oblastnaya Gazeta’s office was in Yekaterinburg, over 1200 kilometers away.

The editors of Oblastnaya Gazeta were not informed and not made a party to the proceedings against them. In December 2017, the District Court granted the prosecutor’s request to have the publication removed and added it to Russia’s unified registry of prohibited content to prohibit its republication. As a result, Russia’s media regulator known as the Roskomnadzor, sent Oblastnaya Gazeta a court order along with a request to remove the article from their website.

The editors of Oblastnaya Gazeta sought Mass Media Defence Centre’s (MMDC) support to appeal this decision at the Saratov Regional Court. Even though the media outlet was not a party to the initial proceedings, Russia’s civil procedure law permitted such an appeal as the Court’s decision affected its rights. MMDC argued that the District Court’s decision violated Oblastnaya Gazeta’s right to freedom of expression and their right to disseminate information as guaranteed under Article 29 of the Constitution of the Russian Federation and Article 10 of the European Convention on Human Rights. They highlighted that the article was a humorous work that exaggerated and ridiculed the practice of bribery and that it did not encourage violations of the anti-corruption measures in place in Russia. The appellants also noted that the article was a joint project between Oblastnaya Gazeta and Krasnaya Burda, an organization widely known and regarded for its satirical work.

Instead of considering the case on merits, the Saratov Regional Court found that Oblastnaya Gazeta, as the publisher of an article that was banned, should have been given an opportunity of being heard in the court  of first instance. In April 2019, it quashed the decision of the Volsky District Court and remanded the case for reconsideration. At Oblastnaya Gazeta’s request, the Volsky District Court permitted for the retrial to be held at the Kirovsky District Court in the Yekaterinburg region of Russia, where both Oblastnaya Gazeta and Krasnaya Burda were based.

During the retrial, the lawyers from MMDC argued again that the prohibition of the satirical article amounted to a violation of Oblastnaya Gazeta’s right to freedom of expression. At this stage, they also engaged a linguistic expert to ascertain the genre of the article and to demonstrate that the aim of the article wasn’t promotion of criminal activity. The expert’s report reaffirmed that the article was indeed satirical and highlighted phrases and referenced linguistic literature to indicate that the notion of the text was humoristic.

In June 2019, however, the Kirovsky District Court dismissed the proceedings since the contested article had already been taken down in 2017 and was no longer available at its original URL. On this basis, it concluded that no further legal conflict existed between the prosecutor and Oblastnaya Gazeta. Oblastnaya Gazeta appealed this decision, arguing that there was a matter of principle at hand and that the article would be reinstated if it was not found to have violated any law. The appeal was successful, and the case was returned to the Kirovsky District Court for new consideration in September 2019.

Outcome

On October 7, 2019, the Kirovsky District Court issued a decision on the merits of the case. The court noted that the article was indeed a work of satire and “did not contain an appeal to unlawful behavior or to commit acts prohibited by the criminal law. It was satirical, aimed at ridiculing corrupt officials.” Further, it agreed with the arguments of the appellants and noted that “in accordance with Article 5 of the Declaration on Freedom of Political Discussion in the Mass Media, the humorous and satirical genre was subject to a high degree of exaggeration and provocation and must be protected under Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.”

As a result, Oblastnaya Gazeta republished the article on their website. Only a few weeks later, another prosecutor in the Kalininsky district of the Krasnodar region of Russia requested his local District Court to ban the circulation of the same article on the same grounds as the previous prosecutor. The lawyers from MMDC representing Oblastnaya Gazeta relied on the judgment of the District Court of Kirovsky, which had prejudicial force over all courts across the Russian Federation. Once the District Court in Kalininsky was informed of this, the prosecutor in Kalininsky withdrew his claim.

Collaboration

The success of the litigation was due to extensive collaboration both within the legal team and with external partners.

Internally, Galina Arapova, MMDC’s Director, and Olga Shatskikh, a lawyer on MMDC’s team, worked together to strategize the case. As Shatskikh stated, “We formulated a strategy for the defense and drafted the legal documents for the appeal. Our vast experience in dealing with similar cases was instrumental and enabled us to work within a very short time frame.”

MMDC, an NGO set up in 1996 to protect the rights of journalists and media outlets and to promote freedom of expression, had vast experience in such cases because, in the words of Arapova, “It is the only organization of its kind in Russia and, therefore, our lawyers have the experience of engaging on similar issues in the past.” She noted that “A majority of media outlets in Russia can’t afford in-house counsel and, often, our organization is one of the only recourses to seek legal help. So, when the editors of Oblastnaya Gazeta reached out to us with the order from the Roskomnadzor, we immediately started working with the team to file an appeal.”

This case also showcases the advantages of having a pre-existing network of lawyers outside of the organization. Arapova stated, “The Court listed the case to be heard in a matter of days. Since our organization is based in Voronezh, over 600 km away from the Volsky District Court in the Saratov region, and both media outlets were another 1000 km away from the court in Yekaterinburg, it would have been impossible for us to collect the Power of Attorney from Oblastnaya Gazeta and reach the Volsky District Court in time for the hearing. Therefore, we reached out to Elena Ovchinnikova, a media lawyer who was based in Yekaterinburg itself. We had known her for many years. She was a part of an informal network of media lawyers, established and supported by MMDC. We use this network as a resource when we need media lawyers to be engaged in cases in remote regions of Russia, where MMDC lawyers cannot go themselves. Ovchinnikova immediately received the Power of Attorney from the Oblastnaya Gazeta since their offices were located nearby in the same city and coordinated with Olga to work on the case.”

Ovchinnikova’s close proximity to both the media outlets enabled her to access Oblastnaya Gazeta and Krasnaya Burda’s documents and to speak with teams of both media outlets. This made it possible to present a lot of evidence to the court in the form of awards and prizes that Krasnaya Burda had won for its satirical and humoristic content to show that the article was simply an attempt to increase awareness on the act of bribery through humor. Even though Krasnaya Burda was not a formal party to the case, they collaborated extensively to support Oblastnaya Gazeta since the article was a result of their partnership with Oblastnaya Gazeta.

Ovchinnikova had studied journalism as an undergraduate and had the experience of working as a journalist for over 20 years. She recalled, “The advantages of my experience of being a practicing journalist before becoming a media lawyer was very helpful. It is just like the advantages of being able to speak two languages – it helped me understand the situation better.” Arapova added, “She added a journalistic flavor to the arguments to appeal to the judges’ common sense.”

This was also helpful for Shatskikh when she was arguing the matter for the second time at the Kalininsky District Court in Krasnodar region of Russia. She stated, “Elena’s insights from the court proceedings in Volsky and Kirovsky were very helpful when I was engaging in the matter in Kalininsky.” Ovchinnikova added, “Even though we are yet to meet in person, we have collaborated extensively for this matter over video calls and messengers.”

MMDC also engaged a linguistic expert to analyze the text of the article and determine its genre. Arapova noted that this strategy was not unusual. She stated, “In cases such as this one, which relate to online dissemination of information in Russia, we often refer to linguistic experts for their analysis of the text.”  Ovchinnikovaadded, “It is important to engage experts because the Court’s degree of trust regarding non-legal matters lies with the experts of those fields.”

In this particular case, MMDC requested the expert opinion of Professor Elizaveta Koltunova, an Associate Professor at the Department of Theoretical and Practical Linguists at the Nizhny Novgorod State University in Russia, who they had also previously invited to provide expertise in other cases. Shatskikh noted, “We gave Koltunova a set of questions about the article. In her report, she answered all the questions, and this assisted the court in determining the nature of the text. Her opinion was very effective and visibly appealed to the judges.” Ovchinnikova concurred and stated, “The linguistic expert’s analysis was a decision-making argument since the court gave it the most importance in its judgment.”

Lessons Learned

An important lesson that the team learned was the need to sensitize the government and bureaucracy about free speech and journalistic freedom in Russia. All lawyers involved in the case were astounded that this type of publication, which was purely satirical in nature, would be considered illegal in Russia. Arapova highlighted the need for European Convention literacy in Russia to increase awareness about free speech and journalistic freedom. She noted “Such unexpected cases arise mainly due to two reasons. First, because individual prosecutors unnecessarily flag content as a bid to show those in power how proactive they are. Second, because they have limited knowledge in the area of digital rights and free speech.” Arapova further added that victories through strategic litigation can also be used to push for broader reforms outside the courtroom.

It is interesting to note that several collaborations, in this case, were a natural result of years of network and relationship-building efforts. Ovchinnikova, for example,was a part of MMDC’s network and instrumental in ensuring a positive outcome. Hence, this case is an example of how long-term collaborations help overcome short-term logistical barriers. It also shows how capitalizing on each other’s strengths can enable successful strategic litigation.

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