Institute of Modern Russia

And something strange also happened to his hearing: it was as if trumpets sounded far away, muted and menacing, and a nasal voice was very clearly heard, arrogantly drawling: “The law of lèse-majesté …”

Mikhail Bulgakov, The Master and Margarita

In the 1990s, a new form of recreation emerged that attracted some well-known people. It consisted of filing lawsuits to protect one’s honor and dignity with a claim for one ruble in damages. This is how State Duma Deputy Victor Ilyukhin evaluated the damage inflicted on him by Moskovskie Novosti journalist Leonid Nikitinsky. Such activities brought about as much profit as playing house does for children, but promised incommensurably greater joy and satisfaction. It became fashionable to engage in reciprocal lawsuits, as was brilliantly demonstrated by two unsurpassed champions in this sport, Generals Anatoly Kulikov and Alexander Lebed, who filed suits against each other. Having seen everything, Russian courts were not intimidated by such suits and awarded one ruble to the winner without batting an eyelid: a person wants one ruble for his or her honor and dignity? All right, they may have it. If they demanded, say three million rubles, they would get zilch, a doughnut hole, but a ruble they can have with great pleasure. But this was entertainment for aesthetes, who wanted to demonstrate their lack of material interest in the lawsuit. Those pursuing these legal actions solely for aesthetic pleasure have completely missed out on the powerful material potential of litigating to defend one’s honor and dignity.

Simple folk, who would not go to court for one ruble, quickly realized how promising this kind of lawsuit is, and the numbers started to grow from year to year. According to the Glasnost Defense Foundation, in 1994, Russian courts considered 1,793 such cases; in 1995, the number reached 3,500. As the number of lawsuits grew, judicial minds grew increasingly concerned about how to determine the amount of compensation. In December 1994, the Plenum of the Supreme Court of the Russian Federation issued a decree “On several issues involving the application of legislation on compensation of moral torts (punitive damages),” which contained the long-awaited detailed instructions. However, the decree did not include anything like a price list for damage to reputation. Neither the law nor the Supreme Court’s regulations established the amount of compensation for the various types of moral damages; consequently, determining the size of the award was left to judicial discretion. In other words, judges were supposed to decide on their own, taking into consideration the circumstances of a specific case and the aforementioned Supreme Court Plenum instructions.

By the end of 1996, there was a choice of weapons available to defend one’s honor, dignity and business reputation. The most tolerant citizens and organizations could demand under the Law on Mass Media that the offending media outlet retract and correct the false and defamatory information it had disseminated. If the citizen or the organization could not come to an agreement with the media outlet on this, they could sort it out in a judicial proceeding: the Civil Code of the Russian Federation provided a plaintiff the right to “claim through the court that the information, discrediting their honor, dignity or business reputation be retracted and corrected, unless the disseminating person can demonstrate the information’s accuracy.” (Art.152) The most touchy and vindictive plaintiffs resorted to heavy artillery and filed criminal lawsuits under Art.129 (Slander) or Art.130 (Insult) of the Criminal Code of the Russian Federation. According to the aforementioned Supreme Court decree, the courts were supposed to “confirm whether moral or physical damage exists, as well as determine in what circumstances and by what activity (inactivity) the damage was inflicted upon the plaintiff, the degree of responsibility of the defendant, and what moral or physical damages the plaintiff suffered.”  Because it is no secret that Russian judges do not like the media and fear journalists, the large number of court decisions against the media should not come as a surprise.

Federal Law # 420-FZ of December 8, 2011, amended various Russian laws and, in particular, invalidated those articles of the Criminal Code that provided criminal liability for slander and insult. The rejoicing at this change did not last long. In July 2012, criminal liability for slander was not only restored, but became more severe. In the new law the list of slanderous acts that entail criminal liability was expanded to include defamation combined with abuse of office, defaming a person by stating he or she is suffering a disease dangerous to public health, and accusing a person of having committed a sexual crime. The penalties were also changed: arrest and imprisonment were eliminated. Fines, on the other hand, were increased and are being calculated differently: in the previous version, a crime was punishable by a fine stated as a multiple of the legally established minimum monthly wage (which could change from time to time); in the new version, fixed amounts have been set.  But the details should not obscure the main point: it became apparent that the government was not ready to abandon criminal punishment for slander since it was such an effective instrument for controlling the media.

According to the proposed amendments, "the refutation must be made in the same or similar way that the information about the citizen was disseminated." The writing on this banner reads "Putin is a thief."

The situation then grew increasingly strange. Last April, a voluminous presidential draft law on amendments to the Civil Code of the Russian Federation was submitted to the State Duma, and is still under consideration. In order not to overwhelm the weary lawmakers with studying and discussing this legislative monster as a single act, it was decided to divide it into parts. Draft law # 47538-6/3, the part which includes the provisions on slander, was approved for adoption on the second reading on January 21 of this year.

This bill includes a new version of Article 152 “Protection of honor, dignity and business reputation,” and its part 4 deserves special attention: “If information denigrating a citizen’s honor, dignity or business reputation has become widely known and consequently its refutation cannot be as widely disseminated, the citizen has the right to demand the recall of such information, as well as to put a restraint or a ban on further dissemination of such information, including seizure and destruction without any compensation of all physical media intended for circulation containing such information, if the elimination of such information cannot be achieved without destroying it.” The proposed law implies that offensive and defamatory information is easily disseminated to the esteemed public, whereas the refutation of such information cannot be as widely disseminated. Why is that?  Is it that the dissemination of information denigrating a citizen’s honor, dignity or business reputation travels along some special lane (with flashing lights and sirens moving against the traffic)? Also, is it not clear what will happen if the defamed citizen is given the right to demand the elimination of defaming information by seizure and destruction without compensation of all physical media containing the mentioned information? Somehow I am not morally ready to have the law establish the right to demand the public burning of newspapers and books in town squares. I naively believed that those times were over…

The situation with books can be even more complicated. Part 3 of the same bill’s Article 152² (The protection of a citizen’s private life) states that “Dissemination of unlawfully acquired information about a citizen’s private life, including its use to create works of science, literature and art, is illegal if it violates a citizen’s interests.” This vague wording offers endless opportunities for unrestricted interpretation by law enforcement authorities, and first of all by judges, who will review such cases. Part 4 of the same Article repeats the phrase about seizure and destruction of all physical media in a way which allows the government to destroy works of art, science and literature. This way, we can easily surpass the Third Reich.

Leaving a loophole for future amendments, Part 1 of the same Article says: “Unless the law says otherwise, acquisition, storage, dissemination, and use of any information about a citizen’s private life, including information about his/her origin, place of temporary or permanent residence, private and family life and other facts concerning this citizen, is not permitted without that citizen’s consent.” This provision completely ignores the following provisions of the Constitution:

• “The collection, storage, use and dissemination of information about the private life of a person shall not be allowed without his or her consent.” (Chapter 2, Art. 24 part 2)
• “Provisions of Chapters 1, 2 and 9 of the Constitution of the Russian Federation may not be revised by the Federal Assembly.” (Chapter 1, Art.135)

The bill’s authors probably have been too busy even to look into the Constitution. But, busy as they have been, they are not devoid of creativity. Here is the proposed text for Article 152 of the Civil Code: “The refutation must be made in the same or similar way that the information about the citizen was disseminated.” Does it follow that if information denigrating a citizen’s honor and dignity was written on the fence surrounding a Russian government building, or on the wall of the State Duma, the refutation should be placed on the same fence or wall?

A number of international organizations, including Freedom House, attest that the Russian press is not free, and that it is dangerous to work as a journalist in Russia. The ring around the media keeps on tightening, to which the return of criminal liability for slander and proposed amendments to the Civil Code unequivocally testify.