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Struggling to Strike the Right Balance Between Interests at Stake Moyakine, Evgeni; Tabachnik, A

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Struggling to Strike the Right Balance Between Interests at Stake Moyakine, Evgeni; Tabachnik, A University of Groningen Struggling to strike the right balance between interests at stake Moyakine, Evgeni; Tabachnik, A. Published in: Computer Law & Security Review DOI: 10.1016/j.clsr.2020.105512 IMPORTANT NOTE: You are advised to consult the publisher's version (publisher's PDF) if you wish to cite from it. Please check the document version below. Document Version Publisher's PDF, also known as Version of record Publication date: 2021 Link to publication in University of Groningen/UMCG research database Citation for published version (APA): Moyakine, E., & Tabachnik, A. (2021). Struggling to strike the right balance between interests at stake: The ‘Yarovaya’, ‘Fake news’ and ‘Disrespect’ laws as examples of ill-conceived legislation in the age of modern technology. Computer Law & Security Review, 40, [105512]. https://doi.org/10.1016/j.clsr.2020.105512 Copyright Other than for strictly personal use, it is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s) and/or copyright holder(s), unless the work is under an open content license (like Creative Commons). The publication may also be distributed here under the terms of Article 25fa of the Dutch Copyright Act, indicated by the “Taverne” license. More information can be found on the University of Groningen website: https://www.rug.nl/library/open-access/self-archiving-pure/taverne- amendment. Take-down policy If you believe that this document breaches copyright please contact us providing details, and we will remove access to the work immediately and investigate your claim. Downloaded from the University of Groningen/UMCG research database (Pure): http://www.rug.nl/research/portal. For technical reasons the number of authors shown on this cover page is limited to 10 maximum. Download date: 29-09-2021 computer law & security review 40 (2021) 105512 Available online at www.sciencedirect.com journal homepage: www.elsevier.com/locate/CLSR Struggling to strike the right balance between interests at stake: The ‘Yarovaya’, ‘Fake news’ and ‘Disrespect’ laws as examples of ill-conceived legislation in the age of modern technology ∗ E. Moyakine a,b, , A. Tabachnik b a University of Groningen –TLS, Groningen, the Netherlands b University of Haifa – CCLP, Haifa, Israel a r t i c l e i n f o a b s t r a c t Keywords: The article deals with the legislative amendments that have been recently adopted in the Russian legislation Russian Federation, the so-called ‘Yarovaya’ law, the ‘fake news’ law and the ‘disrespect’ Yarovaya law law. It explains the essence and problems of implementation of the above-mentioned legal Fake news law instruments and assesses them from the human rights angle. It is established that the rather Disrespect law complex laws under analysis pose significant threats to the human rights and fundamental Human rights freedoms of individuals, including privacy, data protection and freedom of expression, and Privacy introduce other additional negative effects to the Russian society and economy. While in Data protection the adoption of such legislation it is crucial to give due weight to the involved interests, the Freedom of expression used examples indicate that the State’s interests seem to prevail at the cost of the rights Public safety and freedoms of those who need to be adequately protected. Public security © 2020 E. Moyakine and A. Tabachnik. Published by Elsevier Ltd. All rights reserved. in the domain of national security. It constitutes a unique 1. Introduction battlefield where governments –often with the assistance of various private actors –fight new types of war, including strug- Cyberspace has become deeply integrated in our lives: it is gles for the minds of people, a realm which ever more deeply currently impossible to imagine the existence of a modern influences the development of our economy and civil society. individual without a variety of technical tools, including In the recent years, information warfare (hereinafter: IW) smartphones, tablets and computers, that are constantly in cyberspace has become Russia’s major tool in its conflict connected to the world wide web and utilized on a daily basis. with the West. Through IW, particularly propaganda efforts in Cyberspace not only offers many new opportunities in the cyberspace, Russia has allegedly repeatedly intervened in the struggle for democracy and respect of human rights but also election processes and internal affairs of the US, Germany, poses a wide range of challenges and can be used and abused the United Kingdom, Ukraine and several other countries. ∗ Corresponding author at: University of Groningen – Faculty of Law – TLS, Oude Kijk in ’t Jatstraat 26, 9712 EK Groningen, the Nether- lands. E-mail address: [email protected] (E. Moyakine). https://doi.org/10.1016/j.clsr.2020.105512 0267-3649/© 2020 E. Moyakine and A. Tabachnik. Published by Elsevier Ltd. All rights reserved. 2 computer law & security review 40 (2021) 105512 Additionally, through IW Russia has reportedly striven to challenge the stability of the leading Western countries.1 2. Background At the same time, the Russian leadership is convinced that Balancing between national security needs and data privacy Moscow is endangered by internal and external foes seeking rights remains a core dilemma in the field of rule of law in to challenge Russian national security, including that of the cyberspace. In this regard, ‘data privacy rights represent a information sector. From Moscow’s perspective, the internet, special form of respect for the human right to privacy. An and the free flow of information generally, threatens Russian individual’s right to have his or her personal data –name, national security. Thus, in order to prevent a possible Western telephone number, address, health, physical location, finan- (or/and pro-Western forces in Russia) effort to destabilize cial information, and other such identifiers –protected from Russia (as it is perceived in Russia) through IW in cyberspace, use by others without his or her consent is derived from the Moscow should take the necessary precautions.2 general right of the individual to privacy. This right has been Moscow accordingly strives to keep information flow in codified at the international level, inter alia , by the Universal Russian cyberspace under its strict control. Thus, it aims to Declaration of Human Rights, the International Covenant on prevent or deter as much as possible dissemination of infor- Civil and Political Rights (ICCPR), the European Convention for mation which may create a negative image of the country the Protection of Human Rights and Fundamental Freedoms, and its leadership, or any activity which may endanger the and several other regional human rights treaties’.4 regime’s stability. Also ‘in the cyberspace context, the Tallinn Manual 2.0 on Therefore, through legislation and regulation Moscow tries the International Law Applicable to Cyber Operations notes to strengthen control over the information flow in the Rus- that international human rights law applies to cyber-related sian segment of cyberspace and accordingly to preserve the activities of a state as a matter of lex lata , and that individuals stability of the current regime (as believed by the authorities enjoy the same international human rights (such as privacy) in Moscow). In this regard, a number of laws/amendments ac- with respect to cyber-related activities that they otherwise cepted by the Russian parliament and signed by the President enjoy’.5 Overall, the ideas regarding a level of control of in the last years are particularly noteworthy: the ‘Yarovaya’ governmental structures over cyberspace range from digital law, the ‘fake news’ law and the ‘disrespect’ law, which will libertarianism to complete digital sovereignty. At the same be discussed below.3 To the general public, this legislation time, particular national and regional jurisdictions interpret is presented as a necessary measure for the preservation of and apply data privacy rights in different ways.6 public safety and as an anti-terrorist measure. The majority of EU Member States seems (in comparison It is and remains a question however whether this leg- to other major internationals governmental players) to take islation is a feasible and effective tool for ensuring public the most balanced position in protecting privacy rights and safety and which human rights complications it may have, freedom of expression and taking into account the needs of more specifically those related to privacy and data protection. national security, for example the EU General Data Protection Moreover, how will this legislation affect other fundamental Regulation (hereinafter: GDPR), which includes explicit data rights such as the right to freedom of expression? protection mechanisms and introduces a variety of obliga- tions and rights.7 At the same time, considering the balancing act between digital libertarianism and digital sovereignty, the European regulation is rather closer to the libertarian 1 Keir Giles, Handbook of the Russian Information Warfare (Fellow- approach than to digital sovereignty. That is, the GDPR ship Monograph, NATO Defense College (Research Division) 2016); Raphael S Cohen and Andrew Radin, Russia’s Hostile Measures in Europe: Understanding the Threat (Report, RAND Corporation 2019). 2 Valeriy Gerasimov, ‘The World on the Edge of War: It is not 4 Deborah Housen-Couriel, ‘Balancing National Security Enough to Take into Account Today’s Challenges, It is Necessary and Data Privacy: A Key Regulatory Challenge in Cyberspace’ to Predict Future Ones’ (in Russian) ( Voyenno-promyshlennyi Kuryer , (4 March 2018) < https://csrcl.huji.ac.il/people/balancing- 13 March 2017) < https://vpk-news.ru/articles/35591 > accessed 20 national- security- and- data- privacy- key- regulatory-challenge- August 2020; ‘Patrushev Urged to Protect Young Internet Users cyberspace > accessed 25 August 2020. from Foreign Intelligence Services’ (in Russian) ( Interfax , 19 July 5 Michael N Schmitt (ed), Tallinn Manual 2.0 on the International 2019) < https://www.interfax.ru/russia/669683 > accessed 20 Au- Law Applicable to Cyber Operations (CUP 2017) (‘Tallinn Manual 2.0’); gust 2020.
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