Denouncing Russian authorities‘ “muzzling“ of independent media and reiterating its support for media freedom and pluralism, the European Union “banned” two Russian media outlets in March 2022. This apparent contradiction between a statement of principle and concrete action can be resolved. While the ban can be legally justified as a measure designed to suppress “propaganda for war”, European institutions should not try to justify it by pointing to these outlets’ track record of “disinformation” or simply “propaganda”. To address legitimate questions of double standards that will come up in the wake of the inevitable whataboutism, it should be stressed that the Union’s measures differ decisively from any authoritarian censorship by virtue of the Union’s character as a community of law.
The “Ban” of RT and Sputnik in the European Union
As of 2 March 2022, it is prohibited to “broadcast […] any content“ of the Russian state-sponsored media outlets RT and Sputnik (Art. 2f. Regulation (EU) No 833/2014, as amended on 1 March 2022 by Council Regulation (EU) 2022/350; accompanied by Council Decision (CFSP) 2022/351 of 1 March 2022 amending Decision 2014/512/CFSP; based on Art. 215 TFEU and Art. 29 TEU respectively). On 23 February 2022, the editor-in-chief of the English language television news network RT, Margarita Simonyan, had already been sanctioned with a travel ban and asset freeze.
The European Commission points to the “massive propaganda and disinformation“ these outlets supply for the Russian attack on Ukraine and to a “significant and direct threat to the Union’s public order and security“. The Council highlights that “to justify and support its aggression against Ukraine, the Russian Federation has engaged in continuous and concerted propaganda actions targeted at civil society in the Union and neighboring countries, gravely distorting and manipulating facts […] channeled through a number of media outlets under the permanent direct or indirect control of the leadership of the Russian Federation”. Having regard to the “gravity of the situation”, Council and Commission deem the measures compatible with the freedom of expression as enshrined in Art. 11 of the Charter of Fundamental Rights (CFR). They “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.”
The scope of the “ban” is not readily apparent from the regulation, but can be clarified by interpretation. It is narrower than one might expect. Art. 2f of the regulation prohibits any “broadcasting” of these media. The regulation itself does not define “broadcasting” but this is a term used in general European media law: according to Art. 1 (1) (e) and (f) of the Audio-Visual Media Services Directive (AVMSD), it refers to a “linear audiovisual media service”, i.e. television. That the same meaning is to be attributed to “broadcasting” in the regulation that bans RT and Sputnik becomes clear in the examples it lists: broadcasting is defined in the regulation to include “transmission or distribution by any means such as cable, satellite, IP-TV, internet service providers, internet video-sharing platforms or applications”. Moreover, any “broadcasting licence or authorisation, transmission and distribution arrangement” of RT and Sputnik is to be suspended. Such licences are necessary for TV channels but not, for example, for operating websites. According to the regulation’s preamble, the ban expressly does not “prevent those media outlets and their staff from carrying out other activities in the Union than broadcasting, such as research and interviews.” One might add that under the regulation adopted operating websites is also not prohibited, as long as they do not “broadcast or […] enable, facilitate or otherwise contribute to broadcast” the prohibited content.
The Viable Justification: Propaganda for War
The prohibition to broadcast these Russian state-sponsored media can be legally justified as implementing the prohibition of propaganda for war under international and European law, as has been implied by the European Commission’s Vice President Věra Jourová: “We all stand for freedom of speech but it cannot be abused to spread war propaganda.”
The prohibition of propaganda for war is enshrined in Art. 20 of the International Covenant on Civil and Political Rights (ICCPR), and in Art. 2 of the International Convention on the Use of Broadcasting in the Cause of Peace. Nearly all states of the world having ratified the former, it also constitutes customary international law and as such binds the European Union. Considering the ICCPR’s ratification by all EU Member States (with few reservations), the prohibition can also be considered a general principle of EU law (see in detail: Baade, Kriegspropaganda, Europarecht 2020, 653). Advocating for and supporting a war of aggression is thus prohibited by international and European law. That the Russian invasion of Ukraine constitutes such an aggression has been confirmed not only by various commentators in academia, but also by the UN General Assembly overwhelmingly voting to condemn Russia in a Uniting for Peace resolution. Propaganda for war can be conducted through false or misleading information, but this is not constitutive of the prohibition. Advocating for aggressive war is prohibited, even if the opinion in support of such a war is based only on entirely true information.
Banning RT and Sputnik as propaganda for war can rely on previous practice among EU Member States, which has already been confirmed as lawful by the European Commission and the European Court of Justice. Since 2015, Lithuania and Latvia have suspended the broadcasting of the Russian-language television channel “RTR Planeta” multiple times. These decisions were based on Art. 3 (4)(a)(i) and 6 AVMSD which allow for the suspension of television broadcasts if they incite hatred based on certain criteria. The European Commission confirmed that Lithuania and Latvia correctly considered TV shows that called for the occupation and “annihilation” of various states to be propaganda for war that justified suspending the broadcasts, even taking into account the restriction of the freedom of expression according to Art. 52 CFR. In Baltic Media Alliance, the European Court of Justice (ECJ) recognized that countering incitement to hatred on account of nationality in the form of propaganda for war constitutes a legitimate public policy objective. It also confirmed targeted sanctions against Dmitrii Konstantinovich Kiselev who had been appointed as Head of the Russian Federal State news agency “Rossiya Segodnya” for “government propaganda supporting the deployment of Russian forces in Ukraine”.
The Problematic Justification: Disinformation and Propaganda
Even though the “ban” of RT and Sputnik is thus lawful, great care must be taken to ensure that the justification employed does not establish a precedent that becomes problematic as a slippery slope later on. The justification for the ban imposed on RT and Sputnik in the current situation cannot rely solely on their content’s character as “propaganda” and not even as “disinformation”. While RT and Sputnik have long been accused of propaganda and disinformation (and rightly so), banning them on that account would have been a tenuous legal argument for the following reasons.
Before the ECJ, in 2017, Kiselev had argued that “propaganda is protected by the freedom of expression”. To a certain extent, he was correct. Propaganda seeks to influence people’s attitudes and actions. What distinguishes it from legitimate political speech, but also from disinformation, is that it has an instrumental relationship with the truth. Propaganda can employ false but also entirely true information for its ends, which is legally relevant. False statements may be regulated more easily under human rights law, even in a repressive manner, to protect sufficiently weighty individual and public concerns, including national security and territorial integrity (cf. Art. 10 of the European Convention on Human Rights). Opinions (i.e. value judgments) and true statements generally enjoy much stronger protection. The bare concept of “propaganda” thus comprises statements that are without a doubt protected by freedom of speech and could not possibly be lawfully regulated on their own.
Moreover, much of RT’s and Sputnik’s content will likely have to be characterized as “misleading” rather than outright “false” disinformation. Misleading statements, however, do not use false information. They frame and present information that is, strictly speaking, true in such a way as to make its recipients likely to draw false conclusions from it. For example, it is certainly misleading when the German branch of RT only reports the result of the above-mentioned UN General Assembly vote in an off-hand manner at the very end of a post titled “China at UN meeting: abandon bloc mentality and take Russia’s security interests seriously”.
The problem with regulating misleading disinformation is that selecting which true information to report, and how to frame it, is not only at the core of media freedom but also a normative judgment – an opinion (see already: Baade, Don’t Call a Spade a Shovel, Verfassungsblog). Opinions on politically sensitive issues, however, enjoy the highest level of protection under human rights law, even those that “offend, shock or disturb the State or any sector of the population”, as the European Court of Human Rights has rightly reiterated for decades. Banning entire media outlets from broadcasting because they tend to be misleading in this sense, would generally not be possible under human rights law, even if these outlets lean towards the position of an autocratic government. If state influence on the editorial process, which has long been rumored, could be proven, this might warrant a different assessment though.
When Russia invaded Ukraine, this turned RT’s and Sputnik’s disinformation and propaganda concerning Ukraine into propaganda for war, which the EU could lawfully restrict. While ruses of war and even “psychological warfare” are permissible under the ius in bello, this does not apply to justifying a war of aggression in violation of the ius contra bellum.
The Difference Between Authoritarian Censorship and Legitimate Media Regulation
It is essential to emphasize the difference between the state-sponsored media of autocracies and those of democracies, as well as the difference between these states’ regulation of free speech.
State-sponsored media of democratic states are not only legally but actually independent; they can and do report on critical voices concerning “their” governments. See only the BBC on a 7-year-old girl asking the British Prime Minister why he had parties during lockdown when she missed two birthday parties, demanding an apology – it is simply impossible to imagine something like this concerning the Russian President on Sputnik or RT.
The legal concepts used in banning RT and Sputnik may sound similar to those Russia employs against domestic and international media. Russia is reported to have restricted access to media outlets that disseminate “deliberately false information” on the armed conflict in Ukraine. On 4 March, Russia made it a criminal offence to spread disinformation concerning its armed forces. But there are decisive differences. First, the new Russian criminal offence appears to be disproportionate even in the abstract. Imposing a prison sentence of up to 15 years seems entirely excessive and creates an intolerable chilling effect on freedom of speech. Secondly, and more importantly, any action taken against media outlets by the European Union and its Member States is subject to judicial review by independent courts, which RT and Sputnik may avail themselves of. Called upon, the ECJ will impartially assess whether the actions taken against them are based on a sound factual basis, i.e. whether the outlets in question were indeed advocating for a war of aggression, and whether the infringement on freedom of speech is proportionate to the aim pursued, as it did in Kiselev. While Russian actions against media outlets might ultimately come before the European Court of Human Rights, which has condemned Russia time and again for abusing the restriction clauses of the Convention for ulterior purposes in violation of Art. 18 ECHR, no such independent judicial review will be available domestically in Russia. Here, as in other respects, it is the European Union’s character as a community of law that lends legitimacy to its actions and distinguishes the ban of RT and Sputnik from authoritarian censorship.