On March 2, the European Union announced that the Russian public channels Sputnik and RT would be banned from broadcasting within the Union, citing the Russian invasion of Ukraine and the “systematic and international campaign of disinformation, manipulation information and distortion of facts” of the Kremlin. .” And UK media regulator Ofcom today announced it was taking RT off the air after an investigation found it was ‘not fit and proper to hold a license in the UK’.
The dangers of the propaganda spouted by RT and Sputnik are considerable. These outlets are divisive, dividing societies, threatening free and fair elections, and now hiding the truth of a murderous war from a population that should have the facts at their fingertips. Even so, the EU’s decision to ban RT and Sputnik faces immediate obstacles. More importantly, it has much wider implications for free speech that governments and regulators don’t seem to have fully considered.
Announcing the bans, European Commission President Ursula von der Leyen said they were designed to prevent outlets and their affiliates from spreading “their lies to justify Putin’s war and sow division in our union”, as part of an effort to ban “toxic products”. and harmful disinformation” on the continent. Ireland followed suit, as did Poland.
Misinformation and ‘one-sided propaganda’ also spurred Ofcom’s review in the UK, where the decision was left to the authorized regulator rather than political leaders, a move Prime Minister Boris Johnson emphasized it as necessary in a democratic state with free speech as a founding principle. RT is already banned in Latvia and Lithuania, two former Soviet republics, and Germany, and it was no longer broadcast in the UK since the EU ban came into effect.
But while at least half a dozen EU member states have disinformation laws banning the spread of fake news, the EU itself currently has no such law. EU foreign affairs chief Josep Burrell recently indicated that the bloc may soon take further steps to introduce sanction mechanisms for providers of disinformation as well as foreign interference.
For now, however, the EU classifies disinformation as harmful, but not illegal. And as observers have noted, its official definition of the term disinformation – “patently false or misleading information that is created, presented and disseminated for economic gain or to intentionally mislead the public and may cause public harm” – reflects a language that has been rejected by high national courts as contrary to freedom of expression rights.
Nevertheless, the legal recourse to challenge these bans is relatively narrow, in part due to the changing landscape of regulations and classifications related to disinformation. And while international human rights law may also provide a remedy within the limits it imposes on the ability of states to restrict the “freedom to seek, receive and impart information and ideas of all kinds “, it remains to be seen how propaganda is assessed against these standards, as well as the resulting effect on media freedom and the possible threat it could have.
One path, pursued by RT DE after being blocked in Germany in 2021, was based on the legal argument that RT DE’s license in Serbia was sufficient under EU regulations to ensure its continued broadcasting in Germany. But that challenge fell through and a recent appeal decision upheld the ban.
For democratic societies, banning state-sponsored media to suppress disinformation and propaganda, even when done with good intentions, inevitably comes with significant harm to the rights and principles of liberty. of expression.
Another avenue of legal challenge lies in the EU Charter, namely Title II, Article 11, which protects the freedom of expression and information and more specifically the “freedom and pluralism of the media”. Last week, in response to the bloc’s decision to ban RT and Sputnik broadcasts, RT France filed a complaint with the General Court of the EU. But the challenge has yet to be published, so it remains to be seen whether the complaint stands on the Charter and related precedents.
It should be noted that EU sanctions are reduced insofar as they extend to broadcasting but not to journalistic acts, such as seeking interviews, which goes some way to supporting its argument that Broadcast bans do not endanger media freedom.
The EU decision is notable for another reason, however, and that is that it doesn’t appear to have a realistic end date. The official EU statement states that the measures “should be maintained until the aggression against Ukraine comes to an end and until the Russian Federation and its associated media cease carrying out propaganda actions against the Union and its Member States”. Besides the fact that this condition is unlikely to be met, the vagueness of its terms may be a weakness that can be challenged in court.
As the legal challenges move through the courts, one of the immediate consequences of the RT and Sputnik bans, which has wider implications for freedom of expression in the short term, is the likelihood that Russia will return the the same. For example, a day after RT DE was banned last year, German international broadcaster Deutsche Welle suddenly had its broadcasts and journalists banned from Russia. The United Kingdom seems aware of this danger. When Ofcom announced its investigation into RT, UK Foreign Secretary Liz Truss acknowledged the “reality” that banning RT in the UK would likely prompt the Kremlin to ban the BBC. This would not only limit the ability of Western journalists to report in Russia, but also the Russian people’s access to truthful information.
The implications of these prohibitions for freedom of expression more generally also deserve particular attention. If there is an obvious difference between state propaganda outlets like RT and Sputnik on the one hand, and reputable, editorially independent national broadcasters like the BBC on the other, banning a channel just for its points unpleasant, even reprehensible, is extremely worrying.
Misinformation is a significant, if not pervasive, problem in both closed and open societies. Yet democracies can model a more sensible, productive and less authoritarian approach to these challenges. Broadcasters can decide independently whether they want to offer these channels, for example. Social media companies can take steps to ensure that Russian state media are not promoted by their algorithms or allowed to advertise on their platforms. And the public and private sectors can take steps to build a strong national and local news infrastructure to facilitate the dissemination of truthful information.
In the United States, RT is not banned, but since late 2017 has had to register as a foreign agent based on the US intelligence community’s assessment that she is “the propaganda machine of Russian statehood” and contributed to Kremlin interference in the 2016 US presidential election. An entity registered as a foreign agent under the Foreign Agents Registration Act, or FARA, is not limited in the information it disseminates, but is required to follow specific disclosure rules. labeling and record keeping.
The stigmatization of RT and Sputnik as “propaganda” shops to be avoided or even banned does not completely solve the problem, however. These media thrive on posing as a kind of taboo: “the information your government doesn’t want you to see.” When Western countries enact bans, they only fuel these narratives and create a convenient foil for authoritarian regimes such as that of Russian President Vladimir Putin to demonize democratic systems. This further exacerbates the damage wrought by misinformation, and Russia’s own population – sequestered as it is from trustworthy sources and exposed almost exclusively to state-sanctioned messaging – suffers.
The geopolitical ramifications of these bans also cannot be ignored. China, for example, has not been shy about taking reciprocal action against state actions in the past. In 2020, after the Trump administration limited the number of Chinese citizens who could work in the United States for five Chinese propaganda outlets, Beijing expelled journalists from The New York Times, The Wall Street Journal and The Washington Post.
China also takes clear note of the proliferation of anti-disinformation laws in the West. Just last week, a top CCP political adviser called for a new law banning the spread of “false news” online. Of course, regimes like China’s can and do limit their people’s access to information, whether online or otherwise, and they don’t need the convenient excuse of banning a democratic government of some state-sponsored media to act. Having these Western prohibitions to cite as a parallel is nonetheless beneficial fodder.
More importantly for democratic societies, banning state-sponsored media to suppress disinformation and propaganda, even when done with good intentions, careful consideration and good faith, inevitably results in significant harm. the rights and principles of freedom of expression. And as we have seen in recent years, democratic societies are far from impervious to their own so-called authoritarians, so they cannot ward off the potential for bad actors to pervert and abuse laws and precedents. One need only look at the way access to accurate information has all but disappeared within Russia’s borders since the invasion of Ukraine to see the great harm that is done to freedom of expression when governments erect information barriers that they would rather bury.
Nadine Farid Johnson is the Washington Director of PEN America.