Search for the Guilty: The Dangers of New Anti-extremist Fines

By Maxim Krupskiy, Former Visiting Scholar at the Fletcher Russia and Eurasia Program

On July 17, the State Duma adopted the bill “On Amendments to the Code of Administrative Offenses of the Russian Federation” in its second reading. The document, submitted for consideration back in October last year, concerns transport and forwarding activities, but general interest in it was aroused by amendments suddenly introduced for the second reading that have nothing to do with the main topic of the bill. The government and several senators proposed supplementing Chapter 13 of the Code of Administrative Offenses with new provisions, primarily the article “Search for obviously extremist materials and gaining access to them, including using software and hardware for access to information resources, information and telecommunications networks, access to which is restricted.” The article establishes as an administrative offense “deliberately searching for obviously extremist materials in the information and telecommunications network Internet and gaining access to them.” For this, citizens are proposed to be fined from 3,000 to 5,000 rubles.

Prohibited information

The information, the search for and access to which is proposed to be prohibited, consists of two parts. The first is materials officially included in the federal list of extremist materials, which currently contains more than 5,400 items. The second is extremist materials not included in the specified list, documents or information on other media intended for distribution or public display, calling for the implementation of extremist activity or substantiating or justifying the need to implement such activity in accordance with the federal law “On counteracting extremist activity”.

If we take this literally, then the only way to avoid prosecution will be to familiarize yourself with the list of extremist materials in advance and refuse to search for them. Indeed, entering any name of information material (song, film, article or book) that is on the federal list or has signs of extremist materials, according to the law, will indicate a deliberate search for such material and a desire to gain access to it. It will be almost impossible to prove that the user accidentally entered the name of a specific material in the search bar and gained access to it. The argument that the user did not know about the extremist nature of the material will most likely be interpreted by the law enforcement agency as an attempt to evade liability. The problem, however, is that if the user can somehow check the federal list of extremist materials that contains thousands of items and is publicly available, it will be almost impossible to fulfill the second condition and evaluate materials not included in the list for extremism, especially for a person unfamiliar with legal science.

Intent and knowledge

According to the authors of the initiative, the search for obviously extremist materials and gaining access to them must be carried out intentionally. Sufficient evidence of intent will most likely be considered the very fact of searching for specific information materials, for example, entering the name of a music track that is on the federal list of extremist materials into the browser search bar. Knowing extremist materials, that is, the user’s prior knowledge that the material being searched for has extremist characteristics, will most likely be provided for by default – firstly, because the federal list of extremist materials is publicly available and everyone can read it, and secondly, because the description of extremist characteristics is in the law, which is also available to every user.

The problem with this construction of the proposed offense is that it could impose liability on users who intentionally seek out and access the materials in question, for example, for research, scientific, or professional purposes. According to the literal content of the proposed norm, a journalist preparing an article about a music track recently added to the federal list of extremist materials, or a scientist researching the history of the Italian fascist party, would be violators in strict accordance with the letter of the law.

It is worth noting that Russian law enforcement officers have already encountered similar defects in the legislation on combating extremism in 2018, amid the public outcry surrounding the criminal case of blogger Maria Motuznaya, who was accused of insulting the feelings of believers. At that time, Resolution No. 32 of the Plenum of the Supreme Court was issued, which is still in effect today with minor amendments. In it, the court provided important clarifications regarding the proof of intent to distribute extremist materials: “When deciding whether a person has direct intent and intention to incite other persons to carry out extremist activity <…> the purpose of inciting hatred or enmity, as well as humiliation of human dignity when posting materials on the Internet <…> the court should proceed from the totality of all the circumstances of the act and take into account, among other things, the form and content of the posted information, its context, the presence and content of comments from this person or other expression of attitude towards it” (paragraph 8). 

In addition, the court specifically emphasized that “expressing judgments and conclusions that use facts of interethnic, interfaith or other social relations in scientific or political discussions and texts and that are not connected with the implementation of the intention to incite other persons to carry out extremist activity <…> or with the pursuit of the goal of inciting hatred or enmity, as well as humiliating the dignity of a person or group of persons on the basis of gender, race, nationality, language, origin, attitude to religion, or membership in any social group” is not extremism (paragraph 8).

The new amendments do not concern the dissemination of extremist information, but in terms of the degree of uncertainty of the grounds for holding users administratively liable, they surpass even the current criminal legislation on combating extremism.

Search or access

The linguistic construction of the new norms of the Code of Administrative Offences also adds to the problems. For example: “Intentional search for obviously extremist materials and gaining access to them.” It is generally accepted that in the context of law, the conjunction “and” means that both conditions, i.e. search and gaining access, must be met simultaneously for administrative liability to occur in this case. In other words, this means that the very fact of searching for extremist material should not be sufficient grounds for bringing to liability if the user did not follow the link. However, in this case, the opposite is also true: direct clicking on the final link containing extremist material without first searching for such material should not entail administrative liability either, for example, when the user receives such a direct link from an acquaintance. But in this case, the initiative will be deprived of the meaning that the legislator obviously puts into it – preventing the consumption of prohibited content. Moreover, if the legislator did not consider the fact of “deliberate search” for extremist materials as an independent sign of the objective side of the offense, he would not focus on it, limiting himself to indicating the result of the user’s actions — gaining access to extremist material. This allows us to assume that in practice the interpretation of the proposed norm will be broad and the risk of being brought to administrative responsibility even for an unsuccessful search for extremist materials will be high.

So far, the proposed norm contains many more questions than answers, both from the procedural side and from the point of view of common sense. At the same time, numerous explanations and comments from supporters of the adoption of the bill can hardly correct this situation, since they do not have any binding force for the law enforcement officer and the court.

(This post is republished from Forbes.)