The Regulatory Framework for Audiovisual Media Services in Russia

without Frontiers” (ISBN 978-92-871-6115-4,76pages, Edition 2006,58,50€), Given the crucial importance of the Audiovisual Media Services Directive, twomore titleshavebeenpublished inthe IRIS Specialseries:“Audiovisual MediaServices ■ Contents: ■ ■ The publication, which hasbeenwrittenbyAndrei Richter, pace of development of digital media services inRussia isstillslow. and pointing outthatthese difference are due tothe fact thatthe drawing attention tothe big differences betweenthe EUand Russia adaptation of the legalframework tonew audiovisual media services, work for broadcasting inRussia and discussesinthiscontext the It provides adetailed analysis of the basesand regulatory frame- Media Services inRussia” inthe IRIS Specialseries closesthisgap. This publication entitled “The RegulatoryFramework for Audiovisual of, and conditions applying to,thismarket. information hasbeenpublished outside Russia onthe legalbases this background, itisalsoallthe more considerable how little television market hasremarkable economic potential. Against share of the entire European population means thatthe Russian the area where EUlawapplies. The country’s approximately 17% Russia isbyfar the largest European television market outside casting inRussia. a comprehensive and precise picture of the regulation of broad- Policy and one of Russia’s outstanding media specialists, provides Director of the Moscow basedInstitute for Media Lawand Media and Ukr Development of digitalterrestrial television inRussia Advancing inEurope Digital television onitsway? - Implementation of DTT - Recepti - Latestnews - ObservatoryM - Practice of the digital switch-over - Ownership issues - Licensing and competitions - Aspects of the process - Legalconcepts, decrees and other acts - National policy towards digital TV Subject-related publicationsintheIRISfamily Print edition ISBN 978-92-871-6792-724,50€/ aine on of digital television PDF edition ISBN 978-92-871-6800-9 33€ ember Statesand other countries 45 pages, February 2010 Digital television 2010-1: in Russia for AudiovisualMediaServices The RegulatoryFramework

“Editorial Responsibility”(ISBN 978-92-871-6476-6,50pages, Edition 2008,75 €). ■ Content: Contents overview: ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ tional law: The challengesof transposing theDirective intona- - In - Responsibility for ensuring the implementation of, and - The roles of the regulatory authorities - Monitoring of compliance withthe law - Rights of citizens and the industry tobeheard orhave - Co-regulation -for whatareas and how isitorganised? - Deﬁ nition of editorial responsibility - Drawing adistinction betweenlinear and non-linear - Incorporation into existing media lawof the concepts servi The role of statebroadcasting incontrast topublic Licence requirements Key regulatory concepts and their interpretation The national media policy Means of regulatory intervention Restrictions tocombatextremism Rights of national minorities Protection of morals and minors Short reporting rights Right of reply Product placement Advertising: regulation and control Self- and co-regulation Media ownership and concentration compliance with,the rules inindividual cases a sayinmatters services set out solutions chosen telligibility, acceptance, manageability of the ce broadcasting Print edition ISBN 978-92-871-6665-4,89€ 131 pages, Edition 2009 EUR 70 –ISBN 978-92-871-6789-7 Services Directive Services The AudiovisualMedia Ready, Set…Go?

The Regulatory Framework for Audiovisual Media Services in Russia The Regulatory for Audiovisual Media Services Framework in Russia IRIS Special: The Regulatory Framework for Audiovisual Media Services in Russia

European Audiovisual Observatory, Strasbourg 2010 ISBN: 978-92-871-6789-7 EUR 70

Director of the Publication: Wolfgang Closs, Executive Director of the European Audiovisual Observatory E-mail: [email protected]

Editor and Coordinator: Dr. Susanne Nikoltchev, LL.M. (Florence/Italy, Ann Arbor/MI) Head of the Department for Legal Information E-mail: [email protected]

Contributing Partner Institution:

Moscow Media Law and Policy Center Moscow State University ul. Mokhovaya, 9 - Room 338 125009 Moscow Russian Federation Tel: +7 495 629 3804 Fax: +7 495 629 3804 www.medialaw.ru

Editorial Assistant: Michelle Ganter E-mail: [email protected]

Marketing: Markus Booms E-mail: [email protected]

Translation/Proof-reading: Sabina Gorini, Julie Mamou, Nadja Ohlig, Erwin Rohwer, Anne-Lise Weidmann

Typesetting/Print: Pointillés, Hoenheim (France)

Publisher: European Audiovisual Observatory 76 Allée de la Robertsau F-67000 Strasbourg Tel.: +33 (0)3 90 21 60 00 Fax: +33 (0)3 90 21 60 19 E-mail: [email protected] www.obs.coe.int

Please quote this publication as: Susanne Nikoltchev, Ed., IRIS Special: The Regulatory Framework for Audiovisual Media Services in Russia (Strasbourg, European Audiovisual Observatory, 2010)

© European Audiovisual Observatory, 2010. Opinions expressed in this publication are personal and do not necessarily represent the views of the Observatory, its members or the Council of Europe. The Regulatory Framework forAudiovisualMedia Services in Russia

THE REGULATORY FRAMEWORK FOR AUDIOVISUAL MEDIA SERVICES IN RUSSIA 1

The Regulatory Framework forAudiovisual Media Services in Russia

Published by theEuropean Audiovisual Observatory

2009saw asteadyflowofinformationonthe EU’s Audiovisual MediaServices Directive andone does notneed acrystalball to predict thenextwave of information that will spill over our desks in 2010, be it to tell us about transposition andimplemen- tation or about EU enforcementmeasures.The European Audiovisual Observatory has alreadyanalysed someofthe corequestionsthat theDirectiveraises,concentrating especially on those that arelikely to continue to trouble legislators,regulators andthe industry.Asaresult, we published in June2009 theIRISSpecial entitled“Ready, Set… Go? –The Audiovisual MediaServices Directive”.

What we didnot do so faristoinform about thelegal framework foraudiovisual media services outside thescope of EU legislation. ThewiderEurope as covered by theCouncil of Europe andthusthe Observatory goes farbeyond thegeographicreach of the Directive.Tohave its mediaindustry unfold,moreand differentinformation is needed. Onehugeterritory,hometoaround17percentofthe European citizens andthusa significantamountof(potential) recipients of audiovisual mediaservices,isRussia. Yet despite theeconomicpotential of this sizable market, it seemsthat at least outside of Russialittlehas been published on thelegal conditionsthat theaudiovisual industry must meet.

Thankstoour long-standingpartnership with theMediaLaw andPolicy Institute in Moscow,wecan help fill this gap with this publication. AndreiRichter,the author of this IRISSpecial on “TheRegulatory Framework forAudiovisual MediaServices in Russia” gives us an overview of generalaspects such as national mediapolicy,key notionsof regulation andtheir interpretation,licensingrequirements,the role of state versus publicservice broadcasting, mediaownership andconcentration as well as foreign property rules.This IRISSpecial also explainsthe legal framework forspecificquestions such as theright to reply,productplacement,the righttoshort reporting, thesafeguard of publicmorals,the protection of minors,rightsofnational minorities andrestrictions to counter extremism. Last but notleast it explainsthe regulatory meansused within this legal framework, which includeschartersand codes as well as regulation by the national regulatory authority,especially in thefield of advertisement.

Thestructureofthis IRISSpecial follows closely anddeliberately thequestions treated in theIRISSpecial on theAudiovisual MediaServices Directive. This facilitates thecomparison of theunderlyinglegal systemsaswell as thelegal rules applied to the various areas.Ifthis publication focuses mostly on broadcastingitisbecause in Russia other audiovisual mediaservices,and correspondingtheir regulation, arestill in their infancy.This IRISSpecial is very telling in this regardasitdescribes in somedetail the difficulties to adapt theexistingframework to on-demandservice that arestill notas developed as in other European countries.

We would have also liked to report in this context on theadoption of theProtocol for theCouncil of Europe Convention on Transfrontier Television that would have had the potential to cover thewhole of Europe andinclude even non-European countries.Russia has alreadysigned(though notyet ratified) thecurrentversion of theConvention and it was hoped that it would adheretothe Protocol. However,events took adifferentturn andwhether andindeed if ever theConvention will be aligned to theDirective or could apply in Russiawill truly requirethe aforementioned crystal ball.

Strasbourg, 23 December 2009

WolfgangCloss Susanne Nikoltchev Executive Director Head of Department forLegal Information

THE REGULATORY FRAMEWORK FOR AUDIOVISUAL MEDIA SERVICES IN RUSSIA 5

TABLE OF CONTENTS

I. General aspects ...... 9

1. Nationalpolicy andgeneral problems in the regulation of audiovisualservices ...9 a. General approach ...... 9 b. Applicabilityoftraditional requirements to new audiovisual media services ...... 12 i. Mass character ...... 12 ii.Periodicity ...... 13 iii. Dissemination ...... 13 iv.Further reasoning ...... 14 c. Attemptstointroduce aseparatelaw for online services ...... 14 d. Development of new services: the State policyand “softlaw” ...... 15 e. Russia’sposition withregard to theConventiononTransfrontierTelevision ...... 20

2. Key notions of the regulations andtheir interpretation ...... 20 a. Freedom of broadcasting ...... 20 b. Jurisdictionoveraudiovisual media services originating fromthird countries ...... 21 c. Development of broadcasting ...... 21 d. Government-private sectorpartnership ...... 21 e. Uniform licensing for all audiovisual media services ...... 22 f. Must-carryrules ...... 22

3. Licensing requirements for audiovisual media services ...... 23 a. System of dual licences ...... 23 i. Broadcastinglicence ...... 24 ii.Communicationslicence ...... 24 b. Legal instrumentsoftelevision licensing today ...... 25 c. Registration of media outlets ...... 26 d. Specific aspects of the current licensing system ...... 26 i. Statusofthe competition body ...... 26 ii.Criteria forcompetitions ...... 28 iii. Programme policy ...... 29 iv.Duration of alicence...... 29 v. Transfer of alicence ...... 30 vi.Revocationofalicence andcase law...... 31 e. Line-up in the digital era ...... 33

4. Stateversus public service broadcasting...... 34 a. Ideology of state broadcasting ...... 34 b. Statebroadcasting as an alternativetopublic service broadcasting ...... 35 c. Content obligations forstate broadcasting ...... 36

5. Media ownership andconcentration ...... 37

6. Foreign property ...... 39

II. Specific areas...... 41

1. Right of reply...... 41

2. Product placement ...... 43

3. Right to short reporting ...... 45

4. Protection of publicmorals ...... 46

5. Protection of minors ...... 47

6. Rightsofnational minorities ...... 49

7. Restrictions to counter extremism ...... 51

III. Regulatorymeans ...... 53

1. Self-regulation and co-regulation...... 53 a. Self-regulation mechanisms:charters and codes ...... 53 b. Self-regulation and co-regulation bodies ...... 55 c. Public controlthrough boards at state-run channels ...... 56 d. Obstacles to self-regulation ...... 57

2. Regulation by the nationalregulatoryauthority:the case of advertising ...... 58 a. Regulation of commercial speech ...... 58 b. Monitoring and control of compliance with advertising rules ...... 59

3. Co-operation withauthoritiesoutsideofRussia ...... 62

IV.Summary and Outlook ...... 63

THE REGULATORY FRAMEWORK FOR AUDIOVISUAL MEDIA SERVICES IN RUSSIA 9

The Regulatory Framework forAudiovisualMedia Services in Russia

by Andrei Richter, theMoscowMedia Law andPolicy Centre

I. General aspects

1. Nationalpolicy andgeneral problems in the regulationofaudiovisualservices a. General approach

In Russia thepractice of state regulation of broadcastersbegan on 14 July 1990, when the Decree of President Mikhail Gorbachev On Democratisation andDevelopmentofTelevision andRadio Broad- castinginthe USSR wasissued. It gavethe CouncilsofPeople’sDeputies (or Soviets) at all levels, as well as public organisations, therighttoopen television andradio facilities andstudios,and formulated theneed forlegislation on television andradio broadcasting. This decree andthe government resolution that followeditprovided thelegal basisfor the country’sfirstnon-state televisionand radio programmes.

The Statute of theRussianFederation On theMass Media of 27 December 1991 ( No.2124-1)1 laid downseveralmajor components of thepost-Soviet system forregulatingmedia (includingaudiovisual media). They consist of:

•aban on state censorship, •the generalfreedom to establish media outlets, •State registration of media outlets, •special rights andduties forjournalists, includingeditorial independencefromthe founders (owners), •astate licensingobligation forradio andtelevision broadcasters.

TheStatute On theMass Media still constitutes themain legal basis forregulatingbroadcasting, but it is in factavery limited basis andproblematic with regardtoits implementation. To avoid collision with governmental discretion, thefew key provisionsonbroadcastinginthe Statute were subsequently abolished or made less precise.Through these amendments in 2004 licensingand regulation of broadcastingwereput underthe control of governmental bodies.

1) ThetextisavailableinEnglish at: http://medialaw.ru/e_pages/laws/russian/massmedia_eng/massmedia_eng.html

Today theRussian audiovisual sector,though economically viable,2 is still in need of clear andstable rules forits functioning, in theinterestsofthe public andbusiness.Notwithstandingthe repeated attemptsofthe parliament 3 duringthe 1990s to developalegal system forelectronic media,4 the Russian regulation of broadcastingstill presents manyunsolved problems. Russia remainsone of the fewEuropean countries without aparliamentary statute on broadcastingorthe audiovisual media. Moreoveranunannounced moratorium forthe preparation of adraft law on television andradio broadcastingexistssince 2000 (see below). If astatuteweretobedrawn up, it shouldaim at regulating therelationship between Government, broadcasters, programme producers, andtechnical service providers, as well as servingasalegal framework forbroadcastingactivitiesand regulatory instruments. Whileafirst draft forsuchastatute wasinfactsubmitted to theSupremeSoviet (parliament)ofthe USSR in 1991, neither this bill northose prepared later forconsideration by theRussian parliament haveeverbeen adopted and/or promulgated because of thedifferentpolitical positions of thestake- holders on this issue.

That does notmean that Russia lackslegal regulation of broadcasting. Therelationships in this sphereare regulated by 15 federal statutes that, in part, refer to broadcastingissues (e.g. Statutes On theMass Media, On Communications, On Advertising), as well as by four international covenants (the European Convention on Transfrontier Television5 –signed but notratified by Russia –,the Consti- tution andConvention of theInternationalTelecommunication Union,6 andthe OkinawaCharter on theGlobal Information Society7 ), three decrees of thePresidentofRussia, 20 decrees andresolutions of theGovernment,dozens of ordinancesofdifferent ministries as well as the gosudarstvennye standarty (State Standards). Seventeen of theState Standards refer exclusively to digital TV,while50 more arecurrently beingdeveloped just forthis very aspect of broadcasting.8 Theregulation of broadcastingfallsalmost exclusively underfederal jurisdiction. Fewofthe existingregional acts are relevant andonly to theextentthat they do notconflictwith federal legislation (e.g. local subsidies or benefitstostate-runcompanies).

Thevery definition of themass media has remained unchangedinthe Statute On theMass Media since itsadoption in 1991. It stipulates that they “shall be understood to mean aperiodical printed publication, aradio, television or video programme, anewsreel programme, andany other form of periodical dissemination of mass information” (Art. 2). Thekey elements of thenotion are periodicity, dissemination, and mass use of theinformation (understood in Russia in thewidest possiblesense). We shall discuss their meaningbelow.

TheStatute requires all mass media to be registered by their founders (whose legal statusresembles in manywaysthat of owners of themedia outlet) at thespecial executiveoffice,which is currently Roskomnadzor (theFederal Service forSupervisionofCommunications, Information Technologiesand Mass Media underthe Ministry of Communicationsand Mass Communications). TheStatute also stipulates that violationsofsomeofits provisionsmay lead notjusttothe liability of thejournalists andeditorsatfault, but also to theliability of theparticular media entity as such. Possiblesanctions arewritten warnings from theFederal Service.After twowarnings within 12 months, athirdviolation will lead to theforced closureofthe outlet.

Thegeneral position of theRussian governmentregardinglaw andpolicyfor audiovisual media services is represented in thewords of PresidentDmitry Medvedev.Hepronounced them in Berlin on 5June2008, in response to questionsfromGerman political, parliamentary andcivic leaders:

2) See: Digital Television in Russia. Edited by Groteck Co., Ltd. forthe European Audiovisual Observatory.Moscow, 2008. 2) Theparliamenttried to overturn theopposition of theupper chamber (appointed by thePresident) or thepresidential veto on anumber of occasionsbut failed each time. 4) See an earlier (October 2003) report by Sklyarova Ya.(TheMoscowMedia Law andPolicyCentre) TheRussian System of LicensingofTelevision andRadio Broadcasting(Edited by IreneGentile, European Audiovisual Observatory), availableat: http://www.obs.coe.int/online_publication/reports/ru_sklyarova.pdf.en 5) See: http://conventions.coe.int/Treaty/EN/treaties/Html/132.htm 6) See: http://www.itu.int/net/about/basic-texts/index.aspx 7) See: http://unpan1.un.org/intradoc/groups/public/documents/apcity/unpan002263.pdf 8) MayzulsR.and Yu.Shavdia. Развитие нормативно-правовой инормативно-технической базы современного телерадиовещания / “Broadcasting. Те левидение ирадиовещание”No. 3, 2008, pp.31-36. See: http://broadcasting.ru/articles2/Regandstan/progress-tv

“I think that television shouldbeanindependent institution within civil society.Itshouldbe an institution that is both independent andatthe sametimeresponsiblebeforethe country andbeforethe peoplethat receiveits products. Television can be in state hands andinprivate hands,but it needs to be truthful.

Television can be fundedbyadvertisingrevenueoritcan be publicly funded, that is,fundedby donationsmade by citizens. Ithink that we coulddevelopall of these differenttypes of television broadcasting. But it wasnot by chance that Ireferred to thetechnological revolution that is now enteringevery home.

Italked about this with Mrs. Merkel today.Iamabsolutely surethat in fiveyearstimethere will be practically no difference between computersand television sets. All countries,Russia and Germanyincluded, will be confronted first andforemost notsomuchwith television company regulation andlicensingissues,taxationissues,and evenless so ownership issues,but with the contentissue,the question of what is broadcast in theglobal media space andhow.

At thesametime, we need to understandthat humankindhas notyet foundthe answerstoa number of challengesthat confrontusinthis area. To explain what Imean, as youknow,over thelast century theworldhas developed an extensivesystem of rules regulatingcopyright. This system is built on anumber of international conventions. But theemergenceofaglobal environmentfor television broadcastingand information andcommunicationstechnology in generalwill see theend of this system. We havetowork out how theworldisgoingtosettle these issues,not to mention theneed to address more conventional issues such as security and morality.Ithink these areall things we need to work on together.

As formedia developmentinRussia, our media is maturingand,asIhavesaid, thetelevision channelswehavetoday havecomealongway since theearly 1990s.Today we havemore mature, more developed television. This applies to both thestate andprivate channels. In this sense Iamsurethat everythingwill continue to developwithout problems.” 9

In anutshell this position is quite clear: (1) to be independent,television shouldbeaccountable notonly to theaudience but also “tothe country”; (2) contentregulation is muchmoreimportant than licensingregulation andother issues,asthe platform may change whilethe contentwill remain; (3) whereverpossible(copyright, security, public morals)Russiawelcomes international assistance;(4) state as well as private television will keep their places andfreedom to developinRussia; and(5) no public television is envisioned (for acomparison between state andpublic service television see below, I.4.). Nevertheless,accordingtothe position of business andlegal expertstoday thereare fivekey problemsconcerninglegal regulation of theaudiovisual media in Russia. They are:

•inadequate absorption of international trends in modernisingthe law andpractice of the audiovisual media; •contradictionswithin thelegal framework of thebroadcast media as well as within thepending fragmented broadcastingacts; •lackofuniformity in thetermsused for, on theone hand, theissues addressed by regulations and, on theother hand, thedifferenttypes of activities of thevariousplayersofthe audiovisual field; •a voluminousand controversial regulatory system that hampersthe developmentofthe new audiovisual media services andbusiness activities; •longdelaysfor processinglicence applicationsand forobtainingpermissionstouse frequencies andtransmission equipment.10

In this contribution we will tacklethese andother issues concerningthe regulation of audiovisual media services in Russia.

9) http://www.kremlin.ru/eng/text/speeches/2008/06/05/2239_type82914type84779_202294.shtml 10) See footnote 8.

b. Applicabilityoftraditional requirements to new audiovisual media services

Theappearance of what havebecomeknownasnon-linear audiovisual media services (hereinafter also referred to as “new media services”), includingInternet-based services,has invoked neither new norspecific regulation underthe 1991 Statute On theMass Media. Thekey reason relates to the difficulty of squeezingthe new media services into thestatute’sdefinition of amass medium and consequently theissue of whether or notthese services comewithin thescope of thestatute.New non-linear audiovisual media services areunderstood to coverinteractiveand convergedinformation services based on digital computerised andnetworked communication technologies.They aremostly represented by Internet-based services,although mobileaudiovisual services arealsomakingtheir way into Russian life.

If non-linear audiovisual media servicescamewithin thescope of theStatute On theMass Media then itsrules on thespecial system of registration of all media outletswouldapply.Furthermore, the new media serviceswouldhavetorespect numerous obligationsregardingthe content supplied by their authors(whowouldbeconsideredasjournalists), they wouldcomeunderthe control of the governmental media andadvertisingwatchdogs, andcouldbesubjected to sanctionsfor specific violationscaused by thedissemination of mass information. Thepossiblesanctionswouldinclude the ultimate annulmentofthe registration of amass medium. Additional restrictionsimposed by the election law,the advertisinglaw,the defamationlaw,etc. on thedissemination of information through mass media wouldalsoapply.

On theother hand, if acknowledgedasregular (traditional)mass media, such as thepress and broadcasting, thenew media services wouldenjoy thebenefitsofaccess to information andhavea number of specific rights conferred by theStatute On theMass Media andother pieces of legislation upon journalists.

In theremainingpart of this section, we shall examinethe applicability of theexistingdefinition of mass media (seeI.1.a) to thenew media services.Tothis end, we mustfirst of all check whether these services meet thedefinition’s criteria. i. Mass character

Thefirst elementofthe mass media is their “mass” character.The Statute On theMass Media defines mass information as “printed, audio andaudiovisual andother messagesand materialsintendedfor an unlimited range of persons” (Art. 2).

It is true that thenew media services arespreadingrapidly.Inthe law we can see apositivesign forthe advancementofthese changes: Art. 57 of theFederal Statute On Communicationsadopted by theState Duma on 18 June2003 requires that amongthe universal services thesupply of which is guaranteed in theRussian Federation arethe services fordata transfer andprovidingaccess to the Internet from points of multipleaccess.The Statute stipulates especially that in settlements with a population equal to or above 500 peoplethere shall be,atleast, onenetwork pointarrangedfor providingmultipleaccess to theInternet.11

Thus the“mass” in “mass media” is notanumerical sum of thetotal of readers andviewers or a breakthrough number beyond athresholdofathousandoramillion people. Mass referstothe fact that amedium is notreserved to acertain elite.Sofar,almost anywhereinRussia, theability to go onlineathomeorevenatwork tellssomethingabout one’ssocial standinginaway that beingable to watchtelevision, listen to theradio or read thenewspapersdoes not.

11)See thetextofthe Statute (in English) at: http://medialaw.ru/e_pages/laws/russian/communications.htm 12) See Russian Periodical Press Market: 2008. Situation, Trendsand Prospects. Areport by theRussian FederalAgency forthe Press andMass Communications, Moscow, March 2008. An English version of thereport is availableat http://www.chtenie-21.ru/readers/news/2324 13) See: Digital Television in Russia. Op. cit.

In July 2007, theLevadaCentre, an agency forsociological research, conducted astudy,which showedthat oneinfour Russianshad ahomecomputer; 61% hadacell phone; and17% coulduse it to access theInternet. At thesametime, 6% of thecountry’spopulation knew nothingabout the Internet, and73% neverhad an opportunity to useit.12

Mobiledelivery of TV is evenmoreanelite,ifnot an experimental, service forthe population: just 0.2 million households haveaccess to this service. 13 On-demandaudiovisual services arealsovery limitedand spreadonly through somecableand satellite networks. Digital terrestrial television is availabletojust60000 Russians.14

Thus we shouldnot think that new media services areaccessibletothe bulk of theRussian population.However, we shouldaccept thatthe timewill soon come, when fallingcomputer prices and network tariffscoupled with theremovalofremainingpolitical andlegal obstacles will turn them into apopular source of “messagesand materials”for the masses,that is,anunlimited andincalculably vast range of persons. It is then, but only then, that they will havea“mass” character. ii. Periodicity

Another powerful argumentagainst accepting that thenew media services arecoveredbythe legal definition of mass media is that they lack (at least in general) the“periodicity” that is inherentinthe traditional media –newspapers, magazines,TVand radio programmes.Inother words, if on 1January 2010 youaccess onlineinformation intendedfor public consumption youcannot alwaysbesurethat thesupply of information will havea“continuation” to be consumed thenextday (as in adaily news programme) or nextweek (as with aTVmagazine) or evenon1January 2011 (as with aNew Year’s traditional TV ballorconcert).

That is notthe only thingmeantbyperiodicity.Equally relevant is that theaudience expectsall media outletstorenew their contentinfull, retainingonly their identifyingfeatures such as name, principal design, regular participants, signaturetunes,screen logos, andsoon. Such arenewalis expected to occur at certain fixed regular intervals: hours, days, weeks, etc.

Exceptionstothis arethe onlineversionsoftraditionalmedia outlets, on theone hand, and Internet-only publications andnews agencies,onthe other hand. Yetthe former areessentially just considered anew form of “old” media rather than new media, evenifthe onlineversionsdiffer,and thelatter twoaccountfor atinyproportion of theweb. iii. Dissemination

Thethirdelement of thelegal definition of mass media dealswith theunderstandingofwhat “dissemination” is.Inordertobringnew media into thescope of regulation, we need to elucidate whether or notthe Statute On theMass Media covers also thedissemination of mass information(see thediscussion in I.1.b.i)through other formsoftelecommunicationsthan traditional broadcasting (radio andtelevision). Forexample, can transmission overthe Internet be qualified as dissemination? Theformsofdissemination regulated by Russian law areall listed in thestatute (Art. 2). They comprise sale, subscription, delivery,distribution, broadcast, newsreel screenings. Someclauses in thesame statute though allow for“therules established forradio andtelevision” to be applied “toperiodical dissemination of mass information via teletext andvideotext systemsand other telecommunications networks” (Art. 24). Somelegal scholarsbelieve that this reference allows theInternet to be classified as amass medium.15 In our view, however, thereference only encompasses so-called supplementary information, i.e., information that complements atelevision or radio programmetransmission. It does notallow to treat Internet transmission as another form of dissemination that wouldsatisfy the definition of mass media.

14)See interviewofAleksey Malinin, director-general of RTRS, to Itogi magazine3August 2009, No.32, availableat: http://www.itogi.ru/hitech/2009/32/142821.html 15) See,for example, Моргунова Е.А. идр. Комментарий кЗакону РФ «О средствах массовой информации» /Под общ. ред. Погуляева В. В. Изд. 2-е,перераб. идоп. –М., 2005. С. 89. Волчинская Е.К.,Те рещенкоЛ.К.,Якушев М. В. Интернет игласность. –М., 1999. С. 77.

iv.Further reasoning

Applyingthe rules laid downbythe Statute On theMass Media forradio andtelevision to the Internet wouldraise anumber of unresolved policy matters. Forinstance,ifatelevisionstation broadcastsdefamatory content, theperson whose personal or professional namehas been impugned can demandthe rightofretraction. As provided by theStatute,the refutation has to be broadcast at thesametimeofday as theoffendingallegations(Art. 44). Clearly thesameshouldapply in thecase of theonlinemedia, but it is impossibleto“broadcast” andthenimmediately remove adenial on the web, so theexercise becomes pointless.Ifthe denial were to be kept there, how long shoulditremain on thesite, andwhere?Can astory andits denial coexist on thesamewebpage?Ifdefamatory allegationshavetoberemovedfromasite,can they remain in an onlinearchiveinaway equivalent to alibrary’sboundfolders of newspaper editions? Andifthey can, then is an onlineservice entitled to link to them? Thereare no answerstothese questionsinthe Russian law andwithout them any refutation or reply in onlinemedia can quickly descendinto farce.

Thus, thelackofmass accessibility,periodicity (renewal) of contentand dissemination according to atraditional legal understandingsuggeststhat applyingthe currentregimeofthe Statute On the Mass Media to thenew media services wouldbepremature. These constraints couldpossibly be solved andthe Gordian knot be cut by changingthe meanings of thedefinitionssothat they encompass the new services.This is exactly thesolution adoptedinthe mass mediastatutes in Belarusand Kazakhstan amendedin2008 and2009 respectively. As aresult, all or almost all Internet messages andmaterialscan now be controlled underthe generallegal regimeofthe mass media.16

Nevertheless,Russia’sstate regulator forthe media, Roskomnadzor (Federal Service forSupervision of Communications, Information Technologies andMass Media underthe Ministry of Communications andMass Communications), broadly encouragesthe registration of audiovisual andother services that areoffered exclusively onlinethereby treatingthemasmass media entities (see on theregistration of themass media I.3.c). As manyasseveralhundred, maybe thousands of services havebeen registered so far. Theregistration of onlineservices is voluntary,although therewas at least oneinstance in which thecourtsattempted (in 2006-2007) to penalize theonlinepublication Novyy Fokus (NewFocus, an Internet newsmagazinebased in theKhakassia province17)for “dissemination of contentfroman unregistered medium of mass information”. 18 c. Attempts to introduce aseparate law for online services

Most of theattemptstoregulate Internet-based andother new media services within or outside theStatute On theMass Media yieldednopractical results. Forexample, in 2008, adraft ModelStatute On theInternet forthe Commonwealth of Independent States wasdiscussedbythe upper chamber of theRussian parliament. Thebill aimed at regulatingstate aid forInternet-based services,functions andduties of participants in Internet activity,jurisdiction andself-regulation matters, etc.19 The chamber decided to postponethe bill which effectivelyburied theinitiative. When thenew President of Russia Dmitry Medvedev,anInternet addict, rose to powerbrutal attemptstorestrict it seemed to becomefutile. Thecurrentposition of theRussiangovernmentregardingthe regulation of theInternet is reflected in thewords of Medvedev published on his video blog on 22 April 2009, theopeningday of theRussian Internet Forum. He said:

“TheInternet has developed overthese last yearsinto afull-fledgedself-regulated system that has asubstantial influence in all differentareas of our lives.Social networksand blogshave becomecentrepieces in this system […]

Primitiveattemptstoregulate this system faceenormousdifficulties. TheInternet has itsown laws, andthese arethe lawswe, as users, need to follow.Ithink that in this respect thereis work to be done,and this is somethinginwhich we all need to be involved.

16)See Belarus: NewMedia Law Adopted by Andrei Richter,IRIS2008-8: 7, availableat: http://merlin.obs.coe.int/iris/2008/8/article9.en.html andKazakhstan: Amendments to Information andCommunication Law by Andrei Richter,IRIS2009-10: 15, availableat: http://merlin.obs.coe.int/iris/2009/10/article20.en.html 17) See http://khakasia.info/static/contacts.html .The website eventually registered as amass medium in 2007. 18) See,e.g. http://telnews.ru/Ql_dar_Kudinov/c35854 19) See more on this in: Richter A. Правовые основы журналистики. М.:2009. P. 315-316.

TheInternet shouldnot be an environmentdominated by rules set by onecountry alone, even thestrongest andmost advanced country.There should be international rulesdrawn up through collectiveeffort, andthe worldwideweb shouldcontinue to developasithas done so far–as acommon environment. Only this waycan we counter terrorism, xenophobia, andother unlawful activity on theWeb.Finally,only through collectiveagreements can we protect copyright. Iconsider,and indeed insist, that this is all very important.

What can our countries’ authorities do to developthe Internet here in Russia? Ithink that our main task is to create therightconditionsfor maximum access to Internet services. Ican assure youthat given our country’ssize,this is no easyundertaking[…]

Another no less importanttask forthe authorities at all levels is to establish an open presence on thenet. Thesituation with openness andreadiness to providevariousstate services through theInternet is still farfromideal here,and to be frank, very littlehas been done at all in this area. But we arestartingtosee thefirst steps in this direction. Manystate institutionshave created quite good sites of theirs, andthere aresomesuccessful examples of electronic governmentinpractice,inTatarstan, forexample. Ibegan this blog, andmanysenior officials couldnot resist andhavefollowedmyexample. Information on theincomes of thecountries’ senior governmentofficialswas publishedjustrecently on theInternet.

In my view, these twotasks–guaranteeingequal access to theInternet (provision of good quality service at areasonableprice forour country), andhavingthe authorities establish a full andopen presence on thenet andgivethe public convenientaccess to information -are thekey tasksfor theauthorities in this area”. 20

In this andother addresses President Medvedev has stressed with persistence that developmentof information andcommunication technologies,first andforemostofthe Internet,isthe key to economic progress in Russia. TheInternet is also an instrumentthat wouldhelp thecountry emerge from thecurrenteconomic crisis andcombat governmental corruption andother vices.Russia cannot boast that it has reachedanespecially advanced level forthese typesoftechnology. But in the President’swords thecountry certainly has all theprerequisites to achieve abreakthroughinthis area. Information in theinformation society is aproduct formass consumption andapowerful economic resource. d. Development of new services: the State policyand “softlaw”

Dmitry Medvedev also made thepointthat thedevelopmentofinformation technologies directly advances science andtechnology,the efficiency of public administration andeventhe political system because it increases access to political institutions, anditthus extends democracy. 21 In his ownwords, “today it is obviousthat anysort of progress or modernisation is impossiblewithout information technology.This is thecase in thescientific andtechnical spheres,but notonly there: it is also obligatory fordealingwith administrativeissues andeventhe strengtheningofdemocracy in the country”. 22

Theproblemsofpublic access to new media services areacknowledgedbythe authorities.Inhis OpeningAddress at aMeetingofthe State Council Presidium23 on 17 July 2008 with the Agenda On theImplementation of aStrategy forthe Developmentofthe Information Society in theRussianFede- ration PresidentMedvedev enumerated thechallengesfaced by thecountry in this field.

20)http://www.kremlin.ru/eng/text/speeches/2009/04/22/1001_type207221_215341.shtml RegardingPresidentMedvedev’s reference to “international rules drawn up through collectiveeffort” it shouldbenoted that Russia is notaparty to theCybercrimeConvention of theCouncil of Europe. 21) http://www.kremlin.ru/eng/text/speeches/2008/07/17/2220_type82912type82913_204259.shtml 22) http://www.kremlin.ru/eng/text/speeches/2009/02/12/0935_type82912type82913_212854.shtml 23) TheState Council is made up of theheads (governorsand presidents)ofRussia’sconstituentterritories.Other personsmay be appointed to theCouncil at thePresident’sdiscretion. See more on theState Council (in English) at: http://eng.kremlin.ru/articles/council.shtml

Thefirst challenge he mentioned wasthe transition to electronic government, which, if it were achieved, couldincrease thetransparency of governmentservices andhelp reduce corruption. Currently,the goal of an electronic governmentisnomorethan avision forthe future. “Onereason forthis state of affairsisthe very low levelofcomputer literacy on thepart of public andmunicipal employees.This is notthe only reason: thereare also financial andorganisational ones.But it is the most difficult to deal with because it involves people’smentality.And it is precisely these peoplewho shouldbeleadingthe wayinthis area. Iamtalkingabout our colleagues,the governmentemployees. This is that muchmoreurgent because most documents will be in electronic form as early as 2010.”

Another major problem is closely related: alackofcomputerliteracy that extends throughout the population. Thedifference in theamountofinformation andthe information opportunities that exist amongpeoplelivinginRussia has created what is called theinformation gap or thedigital divide. The Presidentadmitted inequalitiesbetween those wholiveinlarge metropolitan areas andhaveevery opportunity to getaccess to theInternet andtouse mobileformsofcommunication, andthose who liveinsmall settlements andhavealmost none.The governmenttook thefirst steps to address this situation when it decided to computerise all theschoolsinthe country andconnect them to the Internet.

Thethirdchallenge,asthe Presidentput it, is theaccessibility of theInternet forthe Russian population. Thereisaneed forbroadbandaccess andthe necessary technology,and themain aspect of this challenge is first andforemost financial. Thegovernmentisconsideringasystem of support for thepurchase of computersfor certain categories of people, likestudents andpupils. Another aspect of this challenge is thedevelopmentofvariouskinds of distance learningtechnologies,primarily in educationand medicine.These arevery relevant to peoplewith disabilities.They include access to telemedicineconsultations, receivingdistance education, andpotentially havingaccess to new job opportunities.

Thefourth problem is thecreationofthe so-called National Accessibility Standards.Anexample forsuchastandardwas adopted as part of thework to connect schoolstothe Internet within the national project “Education”.The Presidentfinds that thereisaneed to developand adopt similar standards forall key areas,includingfor anumber of television andradio services.

Improvinginfrastructurelinksisthe government’sfifth importanttask. Andinthis regarditmust promote andprioritizethe developmentoforbitingciviliancommunicationssatellites,broadcasting satellites, andsatellites forthe conversion of theradio frequency spectrum, which areessential for developingpromisingtechnologies. 24 Theissue of infrastructural constraints, includingthe so-called conversion of radio frequency spectrum, has been on theagendasince 2006.Hereall theheads of the relevant departments of thegovernmentneed to work out aschema to harmonise cooperation between theiroffices: this can be carried out at theinter-departmental levelorbyholdingmeetings of the cabinet.25 AccordingtoDmitry Medvedev,itisobviousthat in all these processes notonly thestate but also theindustry mustbefully involved.

Andfinally,security remainsanother issue in thedevelopmentofinformation technologies.The government, Medvedev believes, mustprovideall userswith asecuremodefor operationsonthe Internet, andasystem which keeps state secrets, commercial secretsand personal secretssafe. 26

Theimplementation of the DevelopmentStrategy forthe Information Society signed into law by the Presidential Decree of 7February 2008 requires accomplishing all these tasks.27 It plans, inter alia,to providebroadbandonlineaccess forthree-quartersofRussian households by 2015.

24)http://www.kremlin.ru/eng/text/speeches/2008/07/17/2220_type82912type82913_204259.shtml 25) http://www.kremlin.ru/eng/text/speeches/2009/02/12/0935_type82912type82913_212854.shtml 26) http://www.kremlin.ru/eng/text/speeches/2008/07/17/2220_type82912type82913_204259.shtml 27) Its text is availableinRussian at: http://www.rg.ru/2008/02/16/informacia-strategia-dok.html

In November 2008,aPresidential Decree established aspecial coordinatingbody in this area, the Presidential Council forthe Developmentofthe Information Society.The reason forthe new body to be set up wasformulated by thePresidentasbeingthe “terrible”backwardness of Russia by all the key indicatorsifcompared with themost developed nationsinthis regard.28

What is evenmoreproblematic,the gap between Russiaand theleadingcountries is not diminishing. An exampleofthis is given by Russia’srankinginthe category of electronic government: in 2005 Russia was56 th,and in 2007 it ranked 92nd.“What does thismean?” –asked Medvedev rhetorically.And he replied: “Thismeansthat we don’t evenhaveanelectronic government. All that is achimera.”29

Thefirst meetingofthe Council forthe Developmentofthe Information Society washeldon12 February 2009 in theKremlin andwas chaired by thePresidentofRussia, whomade theopening remarks. He indicated as themain task of theCouncil andthe main function of thegovernmental departments concerned to create in thenexttwo yearsthe informational andinstitutional prerequisites forRussia’sintegration into theglobal information society despite thedifficultiescaused by thecurrenteconomic crisis.30

On 9February 2009, theeve of themeeting, PresidentDmitry Medvedev signed into law the Federal StatuteOnProvision of Access to Information on Activity of theState Bodies andBodies of Local Self- Government (No. 8-FZ), earlier adopted by theState Duma. TheStatute entersinto forceon1January 2010. It is viewedbythe Presidentasamajor step forthe developmentofthe Internet andInternet services.

Themain aimsofthe new Statute aretransparency of theactivities of governmental andmunicipal authorities,awideuse of new technologies,and objectiveand full informationfor thepublic on the activities of thestate.The Statute foresees theestablishment andregular updatingofofficial Internet websites of state bodies andbodies of local self-government. To this end, these bodies as well as public libraries andother places open to thepublic shall offer access points to theInternet. Art. 13 of the Statute enumerates thetypes of information that may be provided on theInternet. It includes, inter alia,technicalstandards,information on theresultsofinspectionsconducted by theauthorities, statisticaldata, information on theexpenditures of public money,and on vacancies.The exacttype of information to be provided on official Internetwebsites,though, shall be determinedbythe authorities that ownthese websites.Infact, theonly obligatory itemsfor officialwebsites (according to theStatute) arethe address of theofficial e-mail forinquiries,workinghoursand news updates. 31

On adoctrinal level, theInternet andthe new technologies dependontwo major vectors. Oneis theDevelopmentStrategy forthe Information Society,which underlines themost pressingtasks(see above).

Thesecondisembodied in the DoctrineofInformational Security.Adopted on 23 June2000 by the Security Council of theRussian Federation it wassigned into effect by then PresidentVladimir Putin on 9September of thesameyear. 32 Although thedocumentcovers everythingfromthe development of thenational telecommunicationsmarket to questionsofintellectual property,itisunited by asingle idea: theneed to increase governmental control overthe flow of information by establishingalegal basis forsuchcontrol.

Whilenominally committed to freedom of themedia andthe prohibition of censorship, the documentincludeslanguage which appearstosubvert these generalprinciples.Accordingtothe Doctrine, individual Russian citizenscurrently faceanumber of threatsfromthe media including“the

28) http://www.kremlin.ru/eng/text/speeches/2009/02/12/0935_type82912type82913_212854.shtml 29) Ibidem. 30) Ibidem. 31) Formoreonthe statute see “Russian Federation: Access to Information Law Adopted” by Andrei Richter, in IRIS2009-3: 19, availableat: http://merlin.obs.coe.int/iris/2009/3/article31.en.html 32) Published in Rossiyskaya gazeta on 29 September 2000. Its full text is availableinEnglish at: http://www.medialaw.ru/e_pages/laws/project/d2-4.htm

useofthe mass media forrestrictionofthe human rightfor thefreedom of thought”, “thepropaganda of mass culturebased on acult of violence andvalues in violation of normsaccepted by Russian society,” and“themisuse of freedom of information” by themedia.

Russians, thedocumentcontinues,faceevengreater threatsfromabroad, including“theactivity of foreign states,international terrorist andother criminal entities,organisations, andgroups directed at infringement of theinterestsofthe Russian Federation in theinformation sphere, reductionofthe State influence on thelife of society,and diminishingeconomic ability of theState to protect the lawful interestsofcitizens, society,and state in theinformational sphere,”and even“growingdepen- denceofthe spiritual, political, andeconomic life of thecountry on foreign information structures.”

Another threat is theincrease in thetechnological lead of theforeign countries andthe build-up of their potential to counteractthe creation of competitive Russian technologies.Tosafeguardagainst this threat, theDoctrinesetsapriority on thedevelopmentofdomestic modern informationand telecommunicationstechnologies,the production of hardwareand softwarecapableofimprovingthe national telecom networksand their integration into global ones.Though theDoctrinehas no legal power, it points to theconcernsofthe Kremlin.33 Thus we can formulate itsmessage as: develop technologies to stop hostileforeign influence on Russia.

Meanwhile, accordingtoarecentgovernmental report, “Russia keeps up with thelatest global Internet trends,and in manyrespectsleads theworld.”34 That happensdespite,inthe wordsofthe samereport, “theslow spreadofthe Internet” which is themain factorholdingbacknot only the market fordigital content, but also themarket forinformation andcommunicationstechnologies (ICT).

Accordingtothe samesource,there is aclear trendinRussia forthe Internet to be preferred as a medium foraccessingnews than thepress or traditional broadcasting. Only 2% of thepopulation with Internet access usetelevision as anews source,although in Russia television remainsthe main media channel. Therest of theInternet userswatch televisiononly forentertainment. In contrast, on the Internet most usersseek news, or 93% of those between theagesof15and 24, and98% of those between theagesof40and 60. This is hardtointerpret as anythingother than alocal Internet victory overtelevision.

TheInternet usersmainly comefromthe educated section of society with abasic knowledge of the Internet, enough timeand money to engage in such apastime, andadesiretoreadindependent and often contradictory media, thereport says. Themain user of Internet information is onewho is affluent, has an intellectual job, andasteady source of income. Usually,these arepeoplebetween the agesof16and 45, with ahigher or technicalcollegeeducation. They areactiveintheir communities, andhavetheir ownperspectiveonkey social issues.

Accordingtothe 2008 Report of theFederal Agency forthe Press andMass Communications ,the Internet is currently experiencingaboom in user generated content(blogsorlivejournals). In the past fewyears, blogshavenot only incorporated text, but also imagesand video. Theservices MySpace, which is part of Rupert Murdoch’sNews Corporation empire, andYouTube,the leadinguser video site belongingtoGoogle, areflagship projectsofthe Web2.0 Internet eraamong Russians.

Afactorcontributingtothe Internet market growth is theintroductionofbroadbandaccess in large cities.Broadbandaccessmakes it possibletodownload“heavy” content(films, games,software), while “light” content(music,books, etc.)isdistributed today mainly through cell phones,communicators or smart phones.Most Russian usersstill continue to access thenetwork predominantly through dial- up connections. Modern Internet technologies begin to pay their wayonly when acertain visiting thresholdiscrossed. ForInternet usetospreadfaster,broadbandrather than dial-up connectionsare needed.

33)See foradiscussion of thedoctrine“Russian Media PolicyLikened to Soviet Era” by David Hoffman, TheWashington Post, September 14, 2000; A24. 34) See Russian Periodical Press Market: 2008. Situation, Trendsand Prospects. Areport by theRussian FederalAgency forthe Press andMass Communications, Moscow, March 2008. P. 75. An English version is availableat: http://www.chtenie- 21.ru/readers/news/2324

In 2008, theIndependent Media Sanoma Magazines launched amobileversion of theRussian edition of Cosmopolitan magazine, availableatwap.cosmo.ru. Usingtheir cellular phones,magazine readers arenot only abletoreadwhat themagazine’sissues offer (news, articles,advertisements and trendpredictions), but can also post their views on forums. They may commentonmaterials, takepart in votes,pollsand competitions, downloadfreecontent, etc.

In viewofits mobileformat, thedevelopersaddedaPhotoblog service to thegeneral structureof the“wapsite” in ordertoenablevisitorstouploadphotosorimagesfromtheir phones andhavethem participate in avote on thebest content. Registered “wap visitors” can also obtain personalised data on their phones in theform of text messages. Forexample, they may request aweather forecast fora specific city andadaily horoscope,includingadaily personal horoscope.

TheCosmopolitan wasfollowedbythe Maxim magazinewhich started in 2009 Maxim TV video service. 35

However, whilecellular communication advancementinRussia has been asuccess,the samecannot be said of thespreadofcomputersand theInternet. Accordingtothe latest figures released by the Russian Ministry of Communicationsand Mass Communications, only 25 million people(18% of the population) usethe Internet fairly regularly.Statistics expertsfromthe Internet WorldStatsgivea somewhat higher estimate of Internet useinRussia, namely 19.8%.36

By comparison, accordingtothe samedata from theInternet WorldStats, theInternet usein Belarusis56.3% or,put differently,morethan in France (54.7%). Amongthe former Soviet republics, Estonia leadsthe field(with 57.8%). Russia is fifth,behindLatvia andLithuania, but aheadofMoldova, Ukraineand theformer South Caucasian andCentral Asian republicsofthe Soviet Union. In thewords of thegovernmental report, it is tooearly to speak of theInternet “in Russian villagesthat arenot yetmapped.”37

The2008 Russian report on themass media points to fivetrendsthat standout amongahost of developments that transformed theInternet since 2000. Their effect is felt today andthey havethe potential to change theInternet beyond recognition:

•Atthe beginningofthe 21st century,the worldnetwork spawned search engines on such agrand scalethat they broughtalot of advertising andspam to theInternet. •Followingaboom in user contentand theemergenceofbehaviour analysis systems, theInternet becamemoresocial. •New technologies arenow spreadingcontentoverfile-exchangingnetworksand their popularity is asource of worry fortraditional media andacause of thelarge-scalewar against piracy. •There is atrend away from conventional andcostly programmes,suchasMicrosoft Office,and towardsnetwork freeware,suchasthe oneprovided by Google. •Millionsofpeopleare increasingly slipping into virtual reality,and,vice versa, virtual reality is invadingthe real world.38

35) See Российскийрынок периодической печати. Состояние,тенденции иперспективы развития 2009.Russian Periodical Press Market: Situation, Trendsand Prospects. 2009. Areport by theRussian FederalAgency forthe Press and Mass Communications(ed. by Vladimir Grigoriev). Moscow, 2009. P. 32. Available(in Russian) at http://www.fapmc.ru/files/download/Press2009_Block+AF_New!.pdf 36) See Russian Periodical Press Market: 2008. Situation, Trendsand Prospects. Areport by theRussian FederalAgency forthe Press andMass Communications, Moscow, March 2008. P. 79. TheEnglish version is availableat: http://www.fapmc.ru/files/download/445_file.doc 37) Ibidem. 38) See Russian Periodical Press Market: 2008. Op. cit. P. 80-81.

e. Russia’spositionwith regardtothe ConventiononTransfrontierTelevision

Russia is amember state of theCouncil of Europe.Onbehalf of theRussian Federation theMinister of Foreign Affairs, Sergey Lavrov,signed therevised European Convention on Transfrontier Television (ECTT) on 4October 2006.This event wasfollowedbyarepresentativeseminar in Moscow, sponsored by theCouncil of Europe andthe Russian Government. Since then, theonly practical public steps towardsits ratification were made by theMinistry of Cultureand Mass Communication (thepredecessor of thecurrentMinistryofCommunicationsand Mass Communications) at theend of 2007. Back then, theMinistry prepared forthe Governmentofthe Russian Federation twobillstobeintroduced by the latter forconsideration by theState Duma.

Thefirst bill proposed amendments to theStatutes On Advertisingand On theMass Media. In particular,itsuggested adaptingthe currentlegal rules foradvertising, tele-shopping, andsponsorship in broadcaststothe standards of theConvention (regardingtheir frequency andintervals, restrictions, etc.). TheStatute On theMass Media wasamendedbythe introduction of aseparation (in legal terms) of transmission andretransmissionactivities,and limitations on sponsorship. Changeswerealso proposed to thedefinition of therightofreply. 39 Overall theRussian law is notdissimilar to thenorms of theConvention andcouldbeeasily harmonised with theECTT. 40

Thesecondbill shouldhaveserved to ratify theConvention. It contained areservation that the rules foradvertisingofalcohol productswouldbeasinthe advertisinglaw of theRussian Federation (that standardisstricter than in theECTT).41 Thebillsweredrafted so as to enter into forceafter their adoption andofficial publication but notearlier than 1January 2009.

Thegovernmentdid notconsider thebills, at least notpublicly. They were notintroduced in the State Duma. TheMinistry of Cultureand Mass Communication that drafted thebillswas disbandedin 2008, andasoftoday no practical plansexist to havethe Convention ratified in anyforeseeablefuture. Oneofthe reasonscouldbethe unwillingness of thetelevision industry to be restricted by rules outside of itsinfluence andcontrol, especially in theareaofadvertisingand sponsorship andespecially in times of crisis.

2. Key notions of the regulations and their interpretation a. Freedom of broadcasting

TheRussian statutory law stipulates very fewprinciples andnotionsconcerningaudiovisual media. Art. 29 of theConstitution,which wasadopted by anational ballot on 12 December 1993, states that “everyoneshall havethe righttofreely seek, obtain,transmit, produce anddisseminate information by anylegal method.” This is theprincipaldefinition of freedom of information in theRussian legal system. Thesamearticlestates: “Thefreedom of mass information shall be guaranteed. Censorship shall be prohibited.”42 Thus freedom of mass information can be interpreted as therighttofreely seek, obtain,transmit, produce anddisseminate mass information by anylegal method. As wasnoted above (I.1.b) mass information is in turn defined in theStatute On theMass Media as “printed, audio and audiovisual andother messagesand materialsintendedfor an unlimited range of persons” (Art. 2).43

TheConstitution does notspecifically refer to television broadcastinginthis or anyother context. Thus all legal measures governingthe broadcastingsystem arebased on theprovisionsofthe Statute On theMass Media (1991). As wasalsosaid above,the Statute defines mass media in particular as “a television or video programme... andany other form of periodical dissemination of mass information”. Thedissemination of mass media productsisunderstood inter alia as “broadcastingof…TVpro- grammes” (Art. 2).

39) See itstext(in Russian) at: http://medialaw.ru/publications/zip/162/4.htm 40) See,e.g. РихтерА.Последствияприсоединения РФ кЕвропейской конвенции по трансграничному телевидению(ЕКТТ)иПротоколупоправок. Те лефорум (Москва) ,2001, N°10-11. http://broadcasting.ru/articles2/humanit/tv-bez-granic 41) See itstext(in Russian) at: http://medialaw.ru/publications/zip/162/5.htm 42) http://constitution.ru/en/10003000-03.htm 43) See: http://medialaw.ru/e_pages/laws/russian/massmedia_eng/massmedia_eng.html

b. Jurisdiction overaudiovisual media services originating from third countries

Art. 54 (Dissemination of Foreign Information) of theStatute On theMass Media states,in particular,that “citizensofthe Russian Federation shall be guaranteed unimpeded access to reports andmaterialsofforeign mass media.” Thesamearticlealsoprovides that: “Thereception of programmes of direct TV broadcasting shallbelimited nototherwise than in cases provided forby interstate treaties andagreements concludedbythe Russian Federation.”44 That meansthat direct TV may notbeinterrupted unless thereissuchanagreement. No such treatiesand agreements havebeen concludedbyRussia. c. Development of broadcasting

TheResolution of theGovernmentofthe Russian Federation of 29 November 2007 (No. 1700-r) approvedaConcept Paper forthe DevelopmentofTVand Radio Broadcastinginthe Russian Federation in 2008-2015. 45 This documentwas elaborated by thehigh-levelGovernmental Commission on DevelopmentofTVand Radio BroadcastingthenheadedbyDmitry Medvedev in his capacity as First vice-chair of theGovernment. TheCommission, which is still activetoday,was established by the Resolution of theGovernmentof22May 2006 (No. 304) andmandated to coordinate activitiesof differentgovernmental ministries andagencies andother stakeholders in theswitch-overprocess to digital television.46

Theimportance of theConcept Paper forthe DevelopmentofTVand Radio Broadcastinginthe Russian Federation in 2008-2015 is underlined by an extensivebill to amendthe Statute On theMass Media, which agroup of expertschaired by avice-speaker of theState Duma prepared in 2009 forthe rulingpolitical party United Russia. Thebill aimstochange key notionsofthe Statute On theMass Media. In astrange twist of thelaw-makinglogic,the bill has been justified in particular with the necessitytobringanexistingparliamentary actinconformity with thegovernmental concept paper. 47

TheConcept Paper seekstofacilitate citizens’ enjoyment of their “constitutional righttoobtain socially importantinformation”.The main instrumenttodevelopbroadcastingisseen in theswitch- overfromanalogue to digital TV andradio by 2015.

TheResolution of theGovernmentofthe Russian Federation “On theConcept of theFederal Target Programme‘DevelopmentofTVand radio broadcastinginthe Russian Federation in 2009-2015’” allocated themaximum amountofRUB 76,366 million from thefederal budgetfor itsimplementation. TheConcept targets 6500 state-owned telecommunicationsunitstobeupgradedfor digital broad- castingpurposes.

Theswitch-overtodigital TV will be implemented gradually by fivezones from theFar East to the European part of Russia with aspecialfocusonthe regionsborderingforeign countries.The switch- offwill takeplace when more than90% of thehouseholds haveset-top boxestobepurchased individually at their ownexpense. 48 d. Government-privatesectorpartnership

Theideology of how to developthe audiovisual fieldinthe Russian Federation is similar to that in other branches of thenational economyand can be described as aform of partnership between the state (or,the government) andprivate business.

44) Ibidem. 45) Concept of developmentofTVand radio broadcastinginRussian Federation in 2008-2015 ( Концепция развития телерадиовещания вРоссийской Федерации на 2008 —2015годы ) availableinRussian at: http://merlin.obs.coe.int/redirect.php?id=11089 46) Thetextofthe Resolution is availableinRussian at: http://www.government.ru/content/governmentactivity/rfgovernmentdecisions/archive/2006/05/25/4260828.htm 47) Thetextofthe bill with thememorandum is availableinRussian at: http://ruj.ru/2009/090504-10.htm 48) See Russian Federation: Governmentadoptspre-plan fordigital switch-overbyAndreiRichter,IRIS2009-10: 18.

TheConcept Paper forthe DevelopmentofTVand Radio Broadcastinginthe Russian Federation in 2008-2015 specifiedthat: “Construction of theTVbroadcastingnetworksshall be performed on the basis of themarket players’ funds,and thegovernmentshall developaneasily understood and acceptablelegal framework that meetsthe requirements of broadcasters, operatorsand consumersof TV broadcastingservices”. In other words, it is planned that theinfrastructureand networksnecessary to developdigital TV andradio will be built at theexpense of thecommunication companies,while thegovernmenttakes on theburdenofworkingout thelegislativebasis forsuchdevelopment. The government’stask will consist of draftingamendments to three statutes (on licensing, on communications, andonthe mass media), as well as issuingaset of governmental resolutions.

Business expertsconfirm, that theGovernmentofthe Russian Federation chose themodel of a government-private sector partnership in theConcept Paper in spite of theintentionsofmany influential players(in particular, thefederal state unitary enterprise Russian Television andRadio BroadcastingNetwork –RTRS) to obtain funds forthe modernisation of “on-land” (in thesense of terrestrial) infrastructureused to distribute TV signals . 49 Later developments, however, demonstrated that RTRSwill lead such partnerships in broadcasting(see below). e. Uniform licensing for all audiovisual mediaservices

Licensingremainsthe main instrumentofthe state’spolicyinbroadcastingand will continue to be performed by theexecutivebranchofthe government. Therewill be no limit as to thenumber of licences provided to agiven broadcaster,but therewill be limit to thespectrum of licensees (see below). TheConcept Paper forthe DevelopmentofTVand Radio Broadcasting in theRussian Federation in 2008-2015 underlines that, in ordertoreach itsaim, thegovernmentwill in particular “define uniform rules of licensingofbroadcastingdespite thedifferences of methods andtechnologies of transmission”.Whenthe Concept Paper wasoriginally adopted by theCommission on Developmentof TV andRadio Broadcasting on 7November 2007, Mr.Leonid Reyman, then Minister of Information Technologies andCommunications, underlined itsuniversal character as it “does notrequiredifferent rules fordifferenttechnologies of thesignal delivery.Suchanapproach is particularly timely taking into accountappearance of thenew services fordissemination of TV signalssuchasthe Internet and mobilenetworksofthe thirdgeneration.” 50

Thus theuniformity of licensingrules is afundamental notion in this regard. Thelicensingrules were drafted by theMinistryofInformation Technologiesand Communications(another predecessor of thecurrentMinistry of Communicationsand Mass Communications) in 2008 andtook theform of a bill,amendingthe FederalStatutesOnLicensing of Certain Types of Activities,OnCommunications(see more on theStatutes below), andOnthe Mass Media.51 Thebill basically addedseveralarticles to the Statutes that hadbeen copied from thegovernmental regulationsonlicensingbroadcasters. Thedraft wasnot approvedbythe government. Currently itsfate is unclear. f. Must-carry rules

Until recently Russian law hadnomust-carry rules except forvery fewprovisionsinregional legislation. TheConcept Paper forthe DevelopmentofTVand Radio Broadcastinginthe Russian Federation in 2008-2015 assigned thegovernmenttodevelopa“socially-importantpackage of channels” whose transmission to thepublic via all platformswouldbeobligatory andwithout anycharge or fora nominal fee.Inother words, thegovernmenthad to bundleapackage of must-carry programmes.The governmentagreed to coverthe costsfor itstransmission, whilethe delivery of all channelsnot includedinthe package will be left to thefreemarket.

49)Digital Television in Russia. Edited by Groteck Co., Ltd. forthe European Audiovisual Observatory.Moscow, 2008. P. 49. If theRussian governmentwishes to finance aproject, it first of all draftsand confirmsa“concept”, then aFederal Target Programmeand then allocates financing. TheConcept of theFederal Programme, approvedinDecember 2008 by the Governmental Commission on Television Broadcasting, wasenforced by theGovernmenton21September 2009. It is notyet thefinal Programmeassuch. 50) Thereport is availableonthe website of theMinistry at: http://minkomsvjaz.ru/news/xPages/entry.6603.html 51) See thetextofthe bill at: http://www.medialaw.ru/publications/zip/165/1.htm

Theline-up of this package wasdeveloped by thegovernmentand approvedbythe Decree of the PresidentOnNational Mandatory Free Television Channels andRadio Stations of 24 June2009. The decree aimsat“pursuingthe objectives of ensuringfreedom of information andguaranteeingthat peopleeverywhereinRussiahaveaccesstosocially importantinformation”.Itsetsout alist of television channelsand radio stationsthat mustbebroadcast nationwideand free of charge.

Thepackage,namely aline-up of eightmandatory free national TV channels, includessevenstate- run channels: theKultura(theculture andartschannel), Sport, Vesti (24-hour news channel) and Rossia channels, all part of theAll-Russian State Television andRadio Company(VGTRK), ayet to be formed channel forchildren andyouth (tobeestablished by 1January 2011), Channel One, Petersburg -Channel 5, as well as aprivate channel, NTV,owned by Gasprom-Media.Nopublic tenderor competition washeldfor this selection. No explanation has been provided as to why, forexample, a sportschannel wasprioritized overaneducational programme, or whyNTV waspicked from an array of other private networks. No room wasreserved forregional broadcasters, with theexception of the St. Petersburg’s channel, although accordingtothe Concept of theFederal TargetProgramme “DevelopmentofTVand radio broadcastinginthe Russian Federation in 2009-2015” regional branches of theRTRSwill be allowedtomakelocal informational insertsinto these programmes. 52

ThePresidential Decree states that these channelswill be broadcast in mandatory fashion throughout theentirecountry,and at no cost to consumers. Their transmission will be the responsibility of thefederal state unitary enterprise Russian Television andRadio BroadcastingNetwork (RTRS). AccordingtoRTRSnoother operator will supposedlyhavethis right.53

These TV channelsineffect becomemust-carry channelsall overRussia on all platforms, including cableand satellite services.The TV channelsshall be in onecommon multiplex once theswitch-over to digital television takes place.

TheGovernmentofthe Russian Federation shall be obliged to providethese TV channelswith all necessarylicences andtosubsidise their dissemination via analogue anddigital meansinthe market areas with apopulationofless than 200 000 (till 2011) andless than 100 000 (startingfrom2011).54

3. Licensing requirements for audiovisual media services a. System of dual licences

As wasthe case with theintroduction of media registration (see I.3.c) by the USSR Statute On the Press andOther Mass Media of 12 June1990, thelicensingoftelevision andradio broughtinto practice by theDecree On democratisation anddevelopmentoftelevision andradio broadcastinginthe USSR (see I.1.a) of PresidentGorbachev couldbeviewedasacurtailment of thefreedom of mass information because notall applications foralicence to broadcast aregranted. However, given theletter andspirit of international agreements55 andthe waybroadcastersaroundthe worldoperate in practice,itmay be argued that theopposite couldalsoapply.Inademocratic state licensing per se does notobstruct thefreedom of mass information and, moreover, it can andshouldpromote it because it is in thepublic interest to allocate frequencies to those whooffer theoptimum service.Licensingcan also ensurethat broadcasterscomply with definedsocial objectives,for exampletoprotectminorsand guarantee diversity in political debate andinformation. So thereisaneed forthe sector to be properly regulated in ordertobalance freedom of mass information (as guaranteed by theRussian Constitution) against other legitimate rights andinterests.

52) See Russia: Governmentadoptspre-plan fordigital switch-overbyAndreiRichter,IRIS2009-10: 18, availableat: http://merlin.obs.coe.int/iris/2009/10/article26.en.html 53) See interviewofAleksey Malinin, director-general of RTRS, to Itogi magazine3August 2009, No.32, availableat: http://www.itogi.ru/hitech/2009/32/142821.html 54) See: Russia: Must-carry ChannelsApprovedbyPresidentbyAndreiRichter,IRIS2009-10: 18, availableat: http://merlin.obs.coe.int/iris/2009/10/article25.en.html 55) See,e.g., Recommendation Rec(2000)23 of theCommittee of Ministerstomember states on theindependenceand functions of regulatory authorities forthe broadcastingsector.

Broadcast licensinghas adual natureinRussia in that twolicences mustbeobtained: one(to actually disseminate television andradio programmes) from thelicensingauthority,and another (to useafrequency forbroadcasting) from thestate authority that administers communications. Today both authorities arepart of theMinistryofCommunicationsand Mass Communications. i. Broadcastinglicence

Theofficial namefor thefirst type of licence is “permission forterrestrial over-the-air television and/or radio broadcastingwith theuse of aradio channel”.This euphemism is explained by thefact that licensingofbroadcastingisnot envisionedinthe main actregulatinglicensing, namely the Federal StatuteOnLicensingofCertainTypes of Activities of 8August 2001 (No. 128-FZ). This law replaced theact with thesamename, which hadbeen adopted on 16 September 1998. Forless than three years, theearlier statute hadintroduced adegree ofordertothe licensingprocess by regulating basic elements of awardinglicences to broadcasters.56

Another reason to avoid labellingbroadcastinglicences as such wasthat theStatute On Licensing of Certain Types of Activities set caps forlicence fees to be collected by all governmental agencies.The fees arefar below those actuallyimposed by theMinistry of Communicationsand MassCommunications forits “permissions”.Bynot labellingthe latter as broadcastinglicences,the Ministry avoids challenges forviolatingthe Statute.

TheMinistry of Communicationsand Mass Communicationsannounces theamountofthe fee two months beforethe competition. Therequest forlicence fees is justifiedbythe necessity of preventing thosewho arefinancially unable to maintain broadcastingoperationsfromparticipatinginthe competitions.

Accordingtoparagraph 6ofthe governmental Regulation On theSystem of Broadcasting Competitions, theamountofthe fee depends on how muchthe Ministry of Communicationsand Mass Communicationsspends on technical preparations, themaintenance of thefrequency andthe organisation of thecompetition.57 Other features of thebroadcastingmarket, such as thepredicted volumeofadvertisingrevenues andthe populationdensity of theterritory coveredbythe frequency, arealsotaken into account. Therevenues from thefee arecurrently distributed between theFederal Treasury (60%) andthe Ministry of Communications andMass Communications(40%). In practice this sum ranges(mostly reflectingthe audience reachand type of broadcasting) from RUB 1,000 to 30 million (1 EUR equalsabout 44 RUB).

TheMinistry spends thefee on thework of thecompetition commission (see below), thecertifica- tion of frequencies,the control of theabidance to licence conditionsand on theproduction of “socially useful programmes”.Accordingtoanofficial report of theMinistry of Communicationsand Mass Communications, in theperiod from September 2008 to March 2009 thefederal budgetreceived RUB 155.5 million from licensingfees. 58 ii. Communicationslicence

As to thesecondlicence,its issuance is regulated by theFederal Statute “On Communications” of 7July 2003(No.126-FZ).Accordingtothis law thegrounds forissuingabroadcastinglicence are established by apermission to usearadio frequency provided by what is today theState Commission on Radio Frequencies (GKRCh) (or theGovernmentSpectrum Commission) at theMinistry of Communi- cationsand Mass Communications.59 Havingobtained thefirst –broadcasting–licence,the applicant has therighttoreceivethe second–communications–licence without anyadditional tenderorcom- petition.

56)See: Russian Federation: NewLicensingAct Is Adopted by Theodor D. Kravchenkoand PavelV.Surkov,inIRIS1998-10: 10, availableat: http://merlin.obs.coe.int/iris/1998/10/article16.en.html 57) See itstext(in Russian) at: http://base.garant.ru/180606.htm 58) See “Итоги работы отрасли связи, информационных технологий имассовых коммуникаций Российской Федерации за 2008 год” availableat: http://www.minkomsvjaz.ru/.cmsc/upload/docs/200905/18073415we.pdf 59) See itstext(in English) availableat: http://medialaw.ru/e_pages/laws/russian/communications.htm

Thesequence of thelicensingproceduremay be summarised as follows:the Ministry of Communi- cationsand Mass Communications“identifies” afrequency andthenannounces acompetition for broadcasting. Thewinner takes thebroadcastinglicence anddemands thecommunicationslicence, which is automatically issued. b. Legal instruments of television licensing today

TheRegulation On Licensingwas introduced by the Resolution of theGovernmentofthe Russian Federation No.1359 of 7December 1994 as atransitional measuretoregulate broadcastinguntil the adoption of aparliamentary statute on television andradio broadcasting. Based on theDecree of the Presidentofthe Russian Federation No. 2255 of 22 December 1993 On Improvement of State Adminis- tration in theSphereofthe Mass Media”60 this legal instrumentisstill in force, although on anumber of mattersitcollides with newergovernmental ordinances andregulationsdealingwith thelicensing procedure.

The1994 Regulation On Licensingdescribes thegeneral licensingprocedures,liststhe application requirements andexplainsthe possiblereasonsfor refusals. It also outlines themeansthat the regulatory authority (currently Roskomnadzor) may usetosupervise licensees’ activitiesand to ensure their compliancewith thelaw.Itestablishes that only legal entities can apply to theregulatory authority forabroadcastinglicence.

TheRegulation On Licensingauthorised theexecutivebranchtoorganise open competitionswhen severaloperatorsapply forone andthe samefrequency,but it failed to set out thespecific procedural aspectsofthis process.

TheResolution of theGovernmentofthe Russian Federation of 26 June1999 ( No.698)approvedthe Regulation On theSystem of BroadcastingCompetitions,61 which modified thelicensingprocedure. In particular,acompulsory competition procedurefor theaward of broadcastinglicences in cities with a population of more than 200 000 inhabitants wasestablished.

TheRegulation On theSystem of BroadcastingCompetitionsobliges thelicensingauthority to publish an informational statementonthe forthcomingcompetition in an official publication (currently,the Rossiskaya gazeta daily). Thewinner of thecompetition obtainsthe righttoboth the licence forbroadcastingand thelicence foractivities in thecommunications’ field.

Theadoption of thelicensingcompetitionprocedureentailed thecreation (in 1999) of theFederal CompetitionsCommission on Broadcasting(FCC), aseparate body within theexecutive branch.The FCC aims to guarantee transparency andlegal certainty regardingthe procedure.

Accordingtothe official report for2008, by 1January 2009 theRegister kept by Roskomnadzor noted 4965 actinglicences,including:

•over-the-air television –2705; •digital television –19; •satellite broadcasting–14; •over-the-air andcablebroadcasting –2. 62

60) See itstext(in Russian) availableat: http://base.garant.ru/101763.htm 61) See itstext(in Russian) availableat: http://base.garant.ru/180606.htm 62) Thefull text of theRoskomnadzor Report is availableat: http://www.rsoc.ru/docs/20090514160353Lk.pdf

c. Registration of media outlets

Alongwith therequest forthe broadcast licence theapplicants mustsubmit aregistration certificate,aswell as anumber of documents provingtheir technical andfinancial qualifications.

Accordingtothe Statute On theMass Media (Art. 8), amass medium shall carry on itsactivity after itsregistration. An application forregistration is subject to consideration by theregistration authority. Amass medium shall be deemed to be registered since theissue of aregistration certificate.The founderofthe medium shallretain therighttooffer his products/services forone year since theday when thecertificate wasissued. If theproduction anddissemination of themass medium does not start within theyear theregistration certificate shall be deemed null andvoid.63 Thepractice of mass media registration in Russia wasconsidered by theEuropean Court of Human Rights as violatingArt. 10 of theEuropean Convention on Human Rights.64 Today Roskomnadzor is theregistration authority for all mass media outletstotalling100 000. d. Specific aspects of the current licensing system i. Status of thecompetitionbody

Today it is generally accepted that anystate authority empoweredtoregulate themedia mustbe completely independent of thegovernmentand protected against interference from political and business circles.Otherwise,regulation of themedia mighteasily becomesubject to abuse forpolitical or commercial purposes.The three special representatives on therighttofreedom of expression noted that:

“All public authorities which exercise formal regulatory powers overthe media shouldbe protected against interference,particularly of apolitical or economic nature, includingbya process forappointingmembersthat is transparent, allows forpublic input andisnot controlled by anyparticular political party.”65

Freedom of broadcastingdoes notprevent public authorities in Europe or in our context in Russia from licensingtelevision companies. Originally,Art. 30 of theStatute On theMass Media foresaw the establishment of an independent authority (namely theFederal CommissiononBroadcasting) to design andimplementstate policyfor broadcastinglicensing. Such aCommission has neveractually been set up because of political controversies.The articleitself wasabolished in 2004. At thesametime, Art. 31 of theStatute wasamendedtorenamethe Commission into “a federal executiveauthority appointed by theGovernmentofthe Russian Federation” (currently –Roskomnadzor). Roskomnadzor has been granted therighttoeither issue licences at itsdiscretionortoorganise competitionsamong differentapplicants forconferringlicences. 66

Thekey decisionstobetaken through regulation concern theorganisation of thelicensing authority andthe selection of powers with which it shall be vested. In fact, whereas theStatute On theMass Media (Art.30) stipulated thecreationofaregulatory authority with widepowers in relation to licensing, thefollow-up bill on television andradio broadcastingattempted to reduce this powerto amereadvisory status. Accordingtothe 1995 draft statute,the regulatory authority wouldhave consisted of eightrepresentatives,ofwhomtwo wouldhavebeen appointed by thePresidentofthe Russian Federation,two by each chamber of theParliament(FederalAssembly) andtwo by the government. TheRussian Presidentvetoed this bill. Thenextbill addressingthe regulation of a

63) Thetextofthe Statute is availableinEnglish at: http://medialaw.ru/e_pages/laws/russian/massmedia_eng/massmedia_eng.html 64) Application no.30160/04. Case of Dzhavadov v. Russia, judgement of 27 September 2007. See: http://cmiskp.echr.coe.int////tkp197/viewhbkm.asp?action=open&table=F69A27FD8FB86142BF01C1166DEA398649&key=2 2389&sessionld=42705602&skin=hudoc-en&attachment=true 65) JointDeclaration by theUNSpecial Rapporteur on Freedom of Opinion andExpression, theOSCE RepresentativeonFreedom of theMedia andthe OASSpecial Rapporteur on Freedom of Expression, 18 December 2003. ThetextisavailableinEnglish on thewebsite of theOffice of theOSCE RepresentativeonFreedom of theMedia at: http://www.osce.org/documents/rfm/2003/12/27439_en.pdf 66) Thetextofthe Statute is availableinEnglish at: http://medialaw.ru/e_pages/laws/russian/massmedia_eng/massmedia_eng.html

licensingauthority passed thefirst readingin1997, but in 2000 –insteadofbeingtabled forthe secondreading–was returned by theDuma to thestage of thefirst readingand voted then down. That wasthe last attempt to legislate broadcastingatlarge at theparliamentary level. Moreover, accordingtothe Concept Paper forthe DevelopmentofTVand Radio Broadcastinginthe Russian Federation in 2008-2015 adopted by thegovernment, theexecutivedoes notexpect, encourage or envision such aparliamentary statute in principle.

Whilelicensingofbroadcastingitself, that is theactual dissemination of television andradio programming,remainsthe primary factorinregulatingthe audiovisual media in Russia, itsprocedure is defined through presidentialdecreesand governmentresolutionsinthe absence of an overall parliamentary statute.

Although Roskomnadzor remainsthe licensingauthority forall broadcast media outlets, until recently theFederal Competitions Commission on Broadcasting(FCC) also played avery importantrole in thelicensingprocess,namely fortelevision broadcasters.

ThecurrentRegulation of theFCC (which regulates itscomposition andtasks) wasapprovedon 23 July 2008 by an orderofthe Ministry of Communicationsand Mass Communications.67 TheFCC consistsofninemembers. However, when thelicence is to be issued forthe territory of only one province (subject) of theRussian Federation, thepanel includesalso ad hoc delegates from theregional legislative andexecutivebodies,and adelegate from theoffice of theRussian President’srepre- sentativeinthe relevant federal district, thus comprising12members. All of itscoreninemembers andchair areappointed by orderofthe Minister of Communicationsand Mass Communicationsat his/her will. TheCommission worksdirectly at theMinistry of Communicationsand Mass Communi- cationswhich provides it with thenecessary technical, financial andadministrativesupport.

Thecurrentcomposition of theFCC wasoriginally approved on 18 December 2007 andthen reconfirmed in September 2008. Fiveofits coreninememberswerenewly appointed in 2007: Sergei Sitnikov (chair), currently theHeadofRoskomnadzor;adeputy director of thegovernmental department on mass communications;the director of theRussian Museum in SaintPetersburg; thedirector- generalofthe RussianTelevision andRadio Broadcasting Network (RTRS); andafamouscomedian, now thedirector of theVariety TheatreinMoscow. Theremainingfour membersofthe FCC are: theheadof thegovernmental agency that administersthe media assetsofthe state andpublic subsidies to the press ( Rospechat); arenownedfilm critic; asecretaryofthe Russian Union of Journalists; anda Russian advisor to theUNESCO director-general in Paris.

At least athirdofthe coremembersofthe FCC aretorotate each year.This rulewas introduced in late 2007 in orderto“raise thequality of theCommission’swork, provideimpartiality of thevoting, andfacilitate amaximum of effectiveness of theuse of thelimited natural resource of frequencies allocated forbroadcastingpurposes”. 68 Interestingly enough, despite theprovision to rotate the membersits composition has notchangedfor twoyears.

If alicensingauthority andacompetition body aretobeindependent,they shouldconduct their work transparently.Open meetings with records availabletothe public and(or)journalistsare acentral featureofsociety’s control overthe decisionstaken by such importantbodies.The legislation, however, containsnoprovision to achieve this sort of transparency.The maximum degree of openness provided forherein is theopportunity forlicence applicants or their representatives to be presentduringthe evaluation of bids in acompetition.

According to an officialreport of theMinistry of Communications andMass Communications, duringthe period from September 2008 to March 2009 theFCC decided to award61broadcast licences in 75 competitions.69 All licences were issued forradio broadcastingbecause of themoratorium for analogue television (see below).

67)The text (in Russian) is availableat: http://medialaw.ru/publications/zip/168/2.htm 68) Russian Federation: Regulationsofthe LicensingBody AmendedbyAndreiRichter,IRIS2008-2: 18, availableat: http://merlin.obs.coe.int/iris/2008/2/article29.en.html 69) See Итоги работы отрасли связи, информационных технологий имассовых коммуникаций Российской Федерации за 2008 год, availableat: http://www.minkomsvjaz.ru/.cmsc/upload/docs/200905/18073415we.pdf

ii.Criteria forcompetitions

TheFCC is primarily responsiblefor consideringapplications. In addition to thetechnical and financial data provided in ordertoprove thebroadcaster’sability to fulfil itsproposal, theFCC in makingits decision considersmainly theprogrammepolicy. Theprogrammepolicyisablueprint documentinwhich thebroadcaster shouldconceptualiseand describe therange of programmes it proposes to offer andinclude apreliminary schedule.

Thecriteria that alicensingauthority applies when choosingthe winningbids in acompetitive process areanimportantindication of whether or notthe interestsofsociety andfreedom of mass information arebeingserved. But it is difficult to determinethe criteria by which abroadcastingmodel is to be judgedasthe best proposal. TheFCC is boundtoapply aset of criteria recently approvedby Roskomnadzor.They are:

•the audience’sneed forspecific programmes; •the necessity to support socially significanttelevision andradio projects; •originality inherentinthe programmeproposals; •cost analysis concerningthe acquisition of broadcast equipmentand thestudios,the sources of investments andthe termstopay them back; •estimated period after which theequipmentcouldstart functioning.

Generally,the regulatory instruments by no meansalwaysprovidefor aclear,unambiguousand detailed definition of these criteria.70 Forexample, theFCC is expected to promote “socially significant” programmes but no legal instrumentdefines what they are. Whilethe Commission, in practice,usually considerspublic affairs, cultural andchildren’sprogrammes as part of this category,ithas notyet established anyformal definition.Furthermore, in theoverwhelmingmajority of cases,the Ministry of Communicationsand Mass Communications(andits predecessors) has called competitionswithout specifyingany particular targetmarketfor broadcasting models (theso-called “free” programme policy). This practice washighlighted in 2002 by Prof.Mikhail Fedotov,who posed thefollowing question: “This [practice] de-facto meansthe saleoffrequencies,since all competitionsare run on free- concept lines.Sowhat, then, is theState’spolicyonlicensingbroadcasters?”71 In addition, the opinionsofthe FCC members on someofthe listed criteria arenaturally quitesubjective,while Roskomnadzor andthe Ministry hesitate to articulate anypriority amongthe differentcriteria.

TheFCC also lacksestablished criteria to assess theapplicants’financial proposals. It is difficult to predict thevolumeofcapital necessary to maintain astation forseveralyears. In addition, financial instability in Russia hinders theestablishment of guidelines forthe business plansofbroadcasters. All this invites subjectivity as well as political or economic pressureonthe competition body.

Aresearch project aimed at assistingindependent Russian television andradio broadcastersby creatingafavourablelegislativeand regulatory environmentfor licensingthe electronic mass media wascarried out in 2000, with theauthor of this IRISSpecial as participantand project leader. As a resultofthe project it waspossibletoestablish anddescribe in detail thefollowingcriteria thatshould be used forselectingsuccessfulbidders in acompetitiveprocess:72

•contribution to thediversity of media ownership on themarket in question; •accountofthe viewingpublic’sinterests; •the proposed programmepolicy; •experience;

70) Accordingtothe lawyer Sergey Pyankov,“this issue has been oneofthe most acute problemssince unclear criteria for selection of thewinner to alarge extendleadtothe non-transparentcharacter of thecompetitionswhich contradictsthe standards of theCivil Codeofthe Russian Federation”.See Лицензирование телерадиовещания вРоссийской Федерации на конкурсной основе: актуальные вопросы теории ипрактики // Законодательство ипрактика масс-медиа, №11, 2005 г . 71) Федотов М. А. Право массовой информации вРоссийской Федерации. –М., 2002. С. 210. Mikhail Fedotov later joined theFCC as asecretary of theRussian Union of Journalists. 72) In detail see Винокуров Г. В., Рихтер А. Г. Предложения для Минпечати: Экономико-методологическое обоснование расчета платы телерадиовещателей за лицензию на вещание // Правовые вопросы лицензирования телерадиовещания (Подред.А.Г.Рихтера). —М., 2000. С. 104-106.

•efficientuse of thefrequency; •possessionofown autonomouselectricity generator(forradio stations); •retention of existingbroadcasting; •originality andinitiative; •previousbroadcastingonthe given frequency. iii. Programme policy

When preparingthe programmepolicyaspart of their application, thebidders areexpected to classify theproposed programmes(in percentage to thetotal timeofbroadcastingorrebroadcasting) usingthe twelvecategories provided by theguidelinesofRoskomnadzor’sadvisory memo.The categories are:

•news/currentinformation; •specialized news (singletopic or profile), includingelection programming; •information andanalysis programmes commentingoncurrentaffairsand news that areof importancetothe audience andform public opinion; •social andpolitical journalism (publizistik); •cultural enlightenment, includingtheatredramas; •educational, includingtrainingand documentary films; •children’sfare; •sports; •music,includingconcertsand programmes about music; •entertainment, includingcircusperformances,talk shows, gameshows, quiz shows, TV series, erotic programmes; •featurefilms, includingseries up to 12 episodes; •religiousprogrammes,includingservices andtheological talks.73

Thelegal weightofthe proposed programmepolicyisthat itsviolation is equal to abreachofother licence requirements, such as thetechnical characteristics of broadcastingorthe statutory prohibitions of existinglegislation.Any modification of theprogrammepolicytriggersthe need forareissuingof thelicence or itsamendment (see below). Because theprogrammingschedules arechangedregularly by most broadcasters(especially on radio) therequirementofreissuing/amendingthe licence leadsto asignificant restriction of thebroadcasters’ operations. They areobliged to apply foramodification of their licence wheneverthey decidetoalter their programmeschedule. iv.Duration of alicence

In Russia, likeelsewhere in theworld, therighttouse agiven frequency fortelevision or radio (or indeed other purposes) is grantedfor adefinite period of time. Theexistingscarcity of electromagnetic spectrum meansthat noteveryonewho wants to put his programmes on theair can, either now or in thefuture, enter themarket. Moreover, theradio frequencies usethe airspace that belongs to the public.Accordingly,the rights to operate on them aretemporary.

Apart from thecriteria forchoosingthe broadcasterswhich shouldhavearighttouse frequencies, thecontrol of how they usethis rightand thesafeguardofthe independenceofthe competition body (theFCC), as well as theduration of thelicence andthe conditionsfor itsrenewal, arealsosignificant elements forademocratic media system.

Ashort licence notonly hampersabroadcaster from recouping itsinitial investmentbut also makes that broadcaster excessively dependent on thelicensingauthority if theextension or renewalofthe licence is uncertain.Given that thecompetition body in turn is dependent on thestate authorities, that thelicensingcriteria arevague andthat thelaw gives no preference to existingbroadcasters, a short licence resultsinadependency of commercial broadcastersonthe political considerationsofthe circles rulingthe country.

73) See: http://www.rsoc.ru/docs/Pojasnenija_k_blanku_Programmnaja_koncepcija_veshhanija_23.09.09.doc

Short licencesare detrimental notonly to broadcasters’ businessinterestsbut also, andmore importantly,tothe developmentofthe freedom of mass information. This is notonly because of the aforementioned dependenceofbroadcasters on thestate.Long-term planningand heavy investment in makingand buyingprogrammes is necessary to create astablerelationship with theviewingpublic. To maintain that relationship of trust, thebroadcaster strives to meet audience demandasbest it can andprimarily by developinginformationand ideological diversity andhighly professional journalism.

It is notsurprising, therefore, that theindustry is pushingfor theexistinglicence term of a maximum of fiveyearstobeextended. Forexample, EduardSagalayev,the presidentofRussia’s National BroadcastersAssociation (NAT), has often called forprecise andtransparentlicensingrules andregards longerlicences as theprimary aim because thecurrentlimitation of fiveyearsisnot enough to achieve anykindofcommercial success in themedia business.Onbehalf of theindustry he advocated aten-year maximum licence term.74

Theduration of alicence would, of course,not be so importantwereits renewalnot tied up with excessiveorvague requirements. “Thelicence renewalprocedureremainsthe most controversial aspect of thebroadcastingregulation in Russia since 1991”, saysresearcher Yana Sklyarova. 75 TheStatute On the Mass Media does notcontain anyprovisionsdealingwith this procedureand theRegulation on Licensing of 1994 referstothe “established” orderfor alicence renewaland recommends thecompetition body “to takeinto accountthe audience’sopinion on theprogrammingquality” of an incumbentbroadcaster.

Thelicensingauthority (Roskomnadzor) has adopted theregular practice of renewing“automatically” an existinglicence though formally it has no legal authority to do so. In cases when the registration authority forthe mass media (also Roskomnadzor) issues warnings or notices of non- compliance with Art. 4ofthe Statute On theMass Media that forbids anyabuse of thefreedom of mass information (see more on it below), automatic renewalbecomes problematic,ifatall possible.

Accordingtothe official report of Roskomnadzor for2008,76 duringthat year theauthority was petitioned 3651 times on differentissues of licensing. As aresult of these petitionsitissued, reissued or amended2475 licences (or supplements to them) forTVand radio broadcasting. Of the2475 licences,539 licences were renewed, 1242 licences were reissued or amended. Most of therecent petitionsfor reissuinglicences,said thereport, dealt with requestsofbroadcasterstobeallowedto temporarily cut theamountofbroadcasting due to their severe financial andeconomic situation (a change in thenumber of hoursofbroadcasting is aformal reason to reissue thelicence). Other reasons to request thechangesinalicence were:the change of thenameofthe legal entity; thetransfer of a licence to adifferent legal entity; thechange of theaddress of thebroadcaster; thechange of thecapa- city of thetransmitter andits zoneofbroadcasting; changesinthe programmepolicy. v. Transfer of alicence

Thereare problemsinapplyingthe existingrules on thetransfer of broadcast licences.For example, point13ofthe Regulation on Licensingof1994, renders illegal thetransfer of alicence to another person without thepermission of theregulatory authority (as does Art. 31 of theStatute On theMass Media) but it does not, however, provideadefinition of such atransfer.Inthe government’sviewthe transfer implies achange of thelegal entity holdingthe licence but it is still unclear if thereorgani- sation of such an entity couldfall underthis offence.Underthe provisionsofthe Statute On theMass Media, if youget permission fortransfer from theregulatory authority thetransfer of licences is apparently acceptableinall cases.

74) Независимая газета, 3марта2006. 75) Sklyarova Ya.(TheMoscowMedia Law andPolicyCentre) TheRussian System of LicensingofTelevision andRadio Broadcasting. Op. cit. 76) Thefull text of theReport is availableat: http://www.rsoc.ru/main/about/960/

vi. Revocation of alicence andcase law

Art. 32 of theStatute On theMass Media stipulates thepotential reasonsfor therevocation of licences (see below).77 Amongthe reasonsare theviolation of licence termsand conditionsaswell as other unlawfulpractices because amain requirementofalicence is thebroadcaster’sstrict “adherence to all applicablelaw”.The licence can only be revokedafter theissuingofawritten warningbythe licensingauthority.Suchanotificationusually includesthe requirementtocease violationsand desist from anyfurther unlawful practice.

In 2008 thelicensingauthority Roskomnadzor foundviolationsoflicences and“applicable law” by broadcastersin145 cases andissued warnings accordingly.

These cases may be detailed as follows:

•violationsofthe programmepolicy–90warnings; •failuretobroadcast within agiven period –52warnings; •violationsofArt. 4ofthe Statute On theMass Media –2warnings; •other violationsofthe mass media law –1warning.

During2008 sevenbroadcast licence holders hadtheir licences withdrawn forminor violationsof licence conditions.78

As Roskomnadzor is also the registration authority forall mass media outletsitcontrolsinaddition their abidance by themass media law.Accordingtothe official report of Roskomnadzor for2008,79 the FederalService issued 47 written warnings to variousmedia outletsfor violation of Art. 4(“Inadmis- sibility of abuse of thefreedom of mass information”)ofthe Statute On theMass Media. Theonly warningthat hadbeen issued duringthis year to aTVbroadcaster concerned the“2x2” channel in Moscowfor havingbroadcast theU.S.-made cartoons“HappyTreeFriends” and“TheAdventures of Big Jeff” that were considered as propaganda of thecult of violence andcruelty.Ifaviolation of Art. 4is repeated twice andfollowedbyathirdviolation within a12-monthsspan, theregistration office will bringthe matter to acourt of law demandingthe withdrawal of theregistration certificate of themass media outlet andits eventual closure.

In thepast, warnings issued by Roskomnadzor ledtoanumber of court cases.For example, the Moscow-based channel TV-Tsentr (TVC) wasdenied therenewalofits licence in spring2000, after two written warnings duringthe previousbroadcastingperiod. Thefirst warninghad been issued fora violation of electoral regulationsinDecember 1999, thesecondfor achange in thecompany’saddress without formal notificationtothe licensingauthority.InMay 2000, TVC appealed to theMoscowCity Court of Arbitration, which foundthe official warnings null andvoid. Since then, numerous petitions aimed at overrulingsuchdecisionshavebeen filed in thecourts, but TVC remainsone of thefew broadcastersthat wasabletoobtain acourt rulingdeclaringawritten warningissued by a governmental authority to be illegal. At onepoint, theregistration authority claimed that thevery occurrence of asituation resultinginawarningpresented sufficientevidence of violation, regardless of thesubsequentoutcomeofthe court litigation.80

Thecase of Parus-TV is of aparticular significancebecause it dealt with both thetransfer of a broadcastinglicence to another entity andwarnings of thelicensingauthority.Parus-TV,aclosed stock company, foundedthe “Obyedinyonnoe televidenie” (United Television) programmewhich wasbroad- cast in St. Petersburgand thesuburbs terrestrially since 2003 andwas affiliated with theTVnetwork Rambler.Its licence hadbeen granted on 16 April 2003 for5years. Accordingtoits programmepolicy, 90% of airtimewas to be taken by Moscow-based Rambler-Teleset TV Company.

77) Thetextofthe Statute is availableinEnglish at: http://medialaw.ru/e_pages/laws/russian/massmedia_eng/massmedia_eng.html 78) See theofficial report at: http://www.minkomsvjaz.ru/.cmsc/upload/docs/200905/18073415we.pdf 79) See thefull text of theReport availableat: http://www.rsoc.ru/main/about/960/ 80) See: Sklyarova Ya.(TheMoscowMedia Law andPolicyCentre) TheRussian System of LicensingofTelevision andRadio Broad- casting. Op. cit.

On 3January 2005, Rambler-Teleset started broadcastinginthe market via itsown terrestrial channel; this ledtothe annulmentofthe affiliation contractbetween this companyand Parus-TV. Parus-TV then reachedanew affiliation agreementwith theTV-Tsentr (TVC) network andstarted broadcastingits programmingthe sameday,3January 2005. In accordance with thelaw,itpetitioned within amonth of thechange in theprogrammepolicy thelicensingauthority(then named Rosokhrankultura )tonote thechange in thelicence.The petition wassupplemented by thenecessary formsand explanations, amountingaltogether to 41 pages.The licensingauthority thereafter presented thepaperstothe FCC which recommendedtoRosokhrankulturaon29June2005 to make thenecessary modificationofthe licence.However, later,duringthe court proceedings thelicensing authority couldnot provideany proofofhavingmade thenecessarychangesinthe licence.Meanwhile, on 11 April andon1June2005, Rosokhrankulturaissued written warnings to Parus-TV forviolations of thelicence provisionsbecause it broadcasted TV-Tsentr programminginsteadofRambler-Teleset. Both warnings demandedthat the status quo be restored within 30 days.

Parus-TV immediately contested thewarnings in theMoscowCity Arbitration Court but lost the case,aswell as theappeal in theNinth Arbitration Court of Appeals. In 2006, theFederal Arbitration Court of theMoscowDistrict (court of cassation) struck downthe lowercourts’ decisionsand returned thecase to thefirst instance (MoscowCity Arbitration Court). Thejudge of theMoscowCity Arbitration Court renderedhis decision on 12 April2006.81 He foundthat Parus-TV hadundertaken all necessary actionsinaccordance with therelevant law.The licensingauthority violated theterms(calculated by thecourt as amaximum of 60 days) as regards timingfor decidingonthe petition, which equalsa failuretoact. Therewas neither anylegal groundtobringthe petition to asession of theFCC, norto consider thechange of arebroadcastingstation an essential elementofthe licence as this wasnot envisioned by thelaw.The internal procedures anddocuments of thelicensingauthority or theFCC did nothavethe forceofalaw because neither entityhad law-makingauthority in theareaof licensing. Thecourt judgedthat “a change of theprogrammepolicyinthe form of replacementofone rebroadcast programmewith another does notleadtoachange of thevolumeofrights of thelicensee to conduct television broadcastingobtained through correspondinglicence”.Underthe circumstances, said thecourt, therewerenogrounds to reviewthe petition of Parus-TV underthe sameprocedureas an application to obtain anew licence (that is,underafull competition procedure). Moreover, in the opinion of thecourt therelevant law did notrequireadetailed programmepolicyasacondition to participate in acompetition.Accordingtothe announcements on competitionsheldpreviously and reviewedbythe court, theonly condition forobtainingalicence wastopresentafreeorathematic programmepolicy. In thegiven case,ithad been afreepolicyrequirement, on which thechange in a rebroadcasted programmehad no impact.

Thecourt held that Parus-TV hadhad no alternativetorebroadcastingthe TVC programmingasan interruptionofbroadcastingfor three months or more wouldhaveled to theannulmentofthe licence accordingtothe relevant Regulation approvedbythe government. Thus Art. 31 of theStatute On the Mass Media hadnot been violated andthe warnings issued lacked legal grounds.Consideringthe belatedness of therecommendation of theFCC, it hadbeen theinaction of thelicensingauthority that hadcaused thereasonsfor theviolationsnoted in thewarnings. Thewarnings put on thebroadcaster theburdenofactingbyaskingittoreturn to the status quo. Therebroadcastingofnew programming hadbecomeimpossible, however, due to theinaction of thelicensingauthority itself, which hadnot registered thechange in thelicence.

Thejudgementconcludedthat thewarnings of thelicensing authoritywerenull andvoid. Thelatter wasdirected by thecourt to takeadecision on thepetition of Parus-TV to change itslicence.The judgement wasupheldbythe appealscourt andfinally by theFederal Arbitration Court of theMoscow District (on 7November 2006).82

81) Thedecision of theMoscowCity Arbitration Court is availableinRussian at: http://www.sclj.ru/court_practice/detail.php?print=Y&ID=1290 82) See thedecision (in Russian) availableat: http://arbitration.consultant.ru/ams/doc76272.html .Parus-TV waseventually soldtoTV-Tsentr severalmonthsafter thecourt decision entered into force, see: http://www.spbgid.ru/index.php?news=114803

e. Line-up in the digital era

TheMinistry of Communicationsand Mass Communicationsstopped theallocation of bands for analogue television broadcasting in December 2007. Thereason forthis moratorium wasthe necessity to adopt thenew plan of spectrum allocation fordigital televisionbroadcasting. This plan wasapproved by adecision of theState Commission on Radio Frequencies (GKRCh) on 19 March 2009, but only in part –for thefirst multiplex of eightprogrammes (channels). These programmes were denoted by type (like“cultural programmingchannel”), but notnamed individually accordingtotheir providers. The plan wasbased on theresultsofthe work of theGovernmental Commission on DevelopmentofTVand Radio Broadcastingand theConcept Paper forthe DevelopmentofTVand Radio Broadcastinginthe Russian Federation in 2008-2015.83 When readytobebroadcast, said thedecision of GKRCh, these eight digital programmes wouldneed no further permissionsfromthe State Commission on Radio Frequencies provided that theirover-the-airtransmissionscorrespondedtothe relevant technical standards.Aswas already mentioned, theexact line-up forthe first multiplex wasconfirmed by the 24 June2009 Decree of thePresident.

Theproposalsfor thesecondand thirdmultiplexesweretobedeveloped by a“workinggroup” established by theMinistry of Communicationsand Mass Communicationstogether with theMinistry of Defence by theend of 2009. Theexistinganalogue TV broadcastingchannelsincompatiblewith the digital plan in progress were to be repositioned to differentfrequencies.Criteria forthe selection of new frequencies foranalogue TV programmes to be continued until 2015 were to be developed by Roskomnadzor by mid-2009 but failed to materialise. 84

In away,the moratorium wasthe first sign that underthe new system forregulation of broad- castinglicensingoftelevision programmes theroleofthe FederalCompetitionsCommissionwould becomenegligible. This impression wasconfirmedon21September 2009 when PrimeMinister Vladimir Putin signed theResolution of theGovernmentofthe Russian Federation No. 1349-r “On theConcept of theFederal TargetProgramme‘DevelopmentofTVand radio broadcastinginthe Russian Federation in 2009-2015’”.Itcontainscertain guidelines andkey features of theFederal TargetProgramme(FTP) that still need to be finalised. Once theFTP is fully developed, thegovernmentwill approve it by another Resolution.85

More specifically,the Concept assignstoregional branches of thestate-owned Russian Television andRadio BroadcastingNetwork (RTRS) thetask to set up thehubs (administrativecentres) entrusted with shapingthe line-up of thesecondand thirdmultiplexesofdigital TV.The hubs shouldinclude in themultiplexeslocal programmes of their choice.The hubs shall be federal property andbepart of the system to implementthe generalstate broadcastingpolicy. Forthe line-up process,the document envisionsneither atenderorcompetition, norany criteria forwhat programmes oughttobeincluded, norany role of theFCC.86

Thus thepresidentand thegovernmentwithout formally changingthe licensingrules andregu- lations de facto removedthe FCC from thesphereofdigitaltelevision. Whilethe line-up of thefirst multiplex wasdetermined by thepresident, thesecondand thethirdwill now dependonRTRS-led hubs actingwithin theframework of ayet undefined national policy.

This immediately creates legal problemsand loopholes.Aninterestingprecedentisset by the analogue TV channel Sport of theVGTRK which has obtained itsplace in thefirst digital multiplex underthe President’sdecree after thegovernmentdecided that aprogrammeonsportswas necessary forthe “social package”. TheSport channel originally gotits righttobroadcast in 2003 when it took

83) Concept of developmentofTVand radio broadcastinginRussian Federation in 2008-2015 ( Концепция развития телерадиовещания вРоссийской Федерации на 2008 —2015годы ) availableinRussian at: http://merlin.obs.coe.int/redirect.php?id=11089 84) See http://minkomsvjaz.ru/ministry/170/174/6882.shtml 85) Note of theeditor: on 4December 2009 thePrimeMinister approvedthe FTP.The text, however, wasnot yetavailableat thetimeofthe release of this report. We expect to offer adetailed description of itscontentinthe forthcomingIRIS plus 2010-1. 86) See Russian Federation: Governmentadoptspre-plan fordigital switch-overbyAndreiRichter,IRIS2009-10: 18.

overthe frequency of aTVS Companyoppositional to theKremlin. At thetime, thedecision was justified to thepublicbyaneed forinformingabout, andadvertising, sportsasaway of promoting ahealthylifestyle. In October 2009, however, theVGTRK announced that from 1January 2010 Sport will be transformed into theRossia-2 channel with sportstakingupjustone-thirdofits programming. This shall be done in ordertocut costsfor thepurchase of rights to sportsevents andtoattractthose youngpotential viewers whosofar prefer to “spendmost of their timeonline”. 87

Underthe established regimeoflicensing, theFCC wouldhavetoreviewthe change of nameand programmingpolicy. But eventhis wouldbeapointless exercise given that themoratorium prevents theCommission from holdinganew competitionfor an analogue TV frequency.Any demandfor an annulmentofthe licence wouldleadjusttoavacantnationwideterrestrial frequency.The FCC also has no say in thelicensingofdigital terrestrial TV whereSport (or Rossia-2) will soon offer itsprogramme. TheFCC neither regulates cableorsatellite TV wherethe channel is already broadcast in digital form, norare thererules allowingthe FCC to reviewthe line-up of thedigital multiplex in case thenameand programmepolicyofachannel change.Tochange anyofthe facts established by thedecree of the President, oneshouldlogically reviewthe Concept Paper forthe DevelopmentofTVand Radio Broad- castinginthe Russian Federation in 2008-2015 as well as other governmental decisionssuchasthat taken by GKRCh (above). TheTVchannel Sport cannot be replaced in thefirst multiplex by asimilar TV programme because thereisnoother channel that can fit thestandards of ageneral sportschannel. Moreover, thepowerful VGTRK woulddoanythingnot to lose itsplace in theline-up.

Whowill determinethe line-up of thefourth andfurther multiplexesremainsunclear.The government will notmakeany financial investmenttodevelopthe nextmultiplexesbut is likely to appoint RTRSorRoskomnadzor as thequasi-licensingauthority.Itisnot only theFCC that loses itsfunction: licensingatlarge becomes irrelevant because thereare no conditionsset forobtainingaspot in the line-up of multiplexes(at least none that arepublicly spoken), no programmingpolicyhas been declared, no ratio or quotas of differenttypes of programmes areprovided, norhas thetimeduring which achannel may keep itsposition in theline-up been determined. All prerequisites forlicensing digital television broadcastingcan be changedanytimebyadecision of theexecutive. But as we see in thecase of theSport channel thestate authorities also becomehostagestothe situation.

4. State versus publicservice broadcasting a. Ideology of state broadcasting

Prior to 1990, all broadcastersinthe Soviet Union belongedtothe state andwerepart of theUSSR State Committee forTelevision andRadio Broadcasting(or Gosteleradio), which from 1978 wasunder direct supervision of theheadofstate (at thetimethe Chairman of thePresidium of theSupreme Soviet of theUSSR) andthe communist party.

In theperiod from 1990 to 1991, private radio andtelevision stationsbegan to springuppractically everywhereafter obtaininglocal terrestrial or cablerights. Aparticularfeatureofthese “alternative” broadcasters, as they were called at thetime, wastheir heavy useofpirated western films and entertainmentprogrammes combined with locally-produced andincisivepolitical reporting. Alternativebroadcastersrapidly overtook their local state-runcounterpartsinpopularity andposed a challenge to thestaid Soviet andpost-1991 official state broadcasters.88

In Russia, state broadcastersare in effect controlled by thePresident(andregional broadcastersby thecorrespondingregional authorities), whohires andfires thetop executives.This is exactly how thedirector of the VGTRK Company is appointed or dismissed. This practice continues theSoviet tradition of appointingthe Gosteleradio chairman after debates behindclosed doorsatthe Soviet Communist Party’scentral committee.Post-Soviet history of Russian broadcastingcounts anumber of examples of theheadofastate broadcastingcompanybeingdismissedbecause of dissatisfaction with

87)State’sSport Channel Retired as CostsSoar by Ksenia Boletskaya, TheMoscowTimes.2October 2009. P. 7. 88) See: more on this in: Anna Kachkaeva andAndreiRichter.The EmergenceofNon-State TV in theUkraine, Canadian Journal of Communication, 4, Vol. 17 (1992). P. 520.

itsprogrammingorsimply because aprogrammeannoyedthe country’stop leaders. Such removals usually took place without elucidatingthe reasonsand without public debateofthe possible replacements. Analyststraditionally say that state broadcastingchiefsare selected fortheir political reliability andpersonal loyalty to thePresident.89 Thepractice of thestate controllingnational broadcastinginpost-Soviet countrieshas been condemned by international organisationsonnumerous occasions.90

Russian state broadcasterspursue aprogrammingpolicythat is based on theinterestsofthe state –which generally meansthose of thecountry’sleadership. As in other countries with state broadcasters(forexampleinCentral Asia), theconception prevailsthat thestate media belongprimarily to therulingelite or party; thenotion of apublic asset created with andoperatingonpublic funds is very muchsecondary.Accordingly,one of themost important functionsofstate television andradio is to shape public opinion in support of theauthorities.

Another importantaim of theprogrammingpolicy in state broadcastmedia is to attractcommercial advertisingrevenues.Tothis end, state broadcast media favour mass entertainmentand often down- market output. Apologistsfor the“statist” approach to media policymay claim an identity of interest between theelite andsociety,but theway in which state broadcastersfunction in Russia tellsa differentstory.For example, theKrasnodar Territory (a region in Russia) is regardedasa“frontrunner” in servingthe interestsofthe Russian state,and theregional government’s Novoye televideniyeKubani station in thecourse of 2004 took off-air virtuallyall itspublic service programmes: “Whereare you, Mum?”, whichwas about orphansand hadareal impact; “Cossack Herald”, whichwas theonly programmecoveringCossack issues; and“Health Formula”.Children’sprogramminghad already been done away with earlier.The reason wasthe samethroughout –these programmes were notbringing in advertisingprofits. They were replaced by night-timechat shows of apurely commercial natureand three soft-porn shows, oneofthemproduced locally. 91

With theexception of therights of candidates to free andpaid access to state broadcast media duringthe four weeksprior to ballotingand equal access of thenational political parties (see I.4.c), no public obligationsexist in law or practice forthe state-run broadcasterstobroadcast certain information. At thesametime, alongsideadvertisingrevenues,state broadcastingisfinanced directly by thestate.The necessary sum is requested annually by thegovernmentand approvedbythe parliament. Themoney forthe VGTRK –the country’smain state broadcaster –isaseparate item in thefederal budget. Thereare no obstacles to correlatingthe leveloffundingfor state media to its loyalty to theauthorities; this applies to state broadcastersunless,ofcourse,other andespecially administrativewaysofinfluencingthemare available. b. State broadcasting as an alternativetopublic service broadcasting

We note that in theCouncil of Europe’sopinion, “public service broadcastingisavital elementof democracyinEurope”. 92 No wonderthat thedraftingactivityonaregulation of public service broadcasting, slow in theearly 1990s,was briefly boosted by theadmission of theRussian Federation to theCouncil of Europe in 1996 andthe subsequentshort lived jointwork of Russian andEuropean media experts. It reachedits peak in 1997 when theState Duma adopted in thefirst readingabill “On Television andRadio Broadcasting”, which inter alia called forthe establishment of public service broadcastinginRussia, alongsidestate andprivate broadcasting. Thebill stated that regulationson public service radio andTVwouldbeset by aseparate statute. 93 In 2000, as wasmentioned above,the bill wasresubmitted forafirst readingand voted downbyparliament.

89) Media Sustainability Index 2004. TheDevelopmentofSustainableIndependent Media in Europe andEurasia. –Washington, 2005. P. 206. 90) See,e.g., Parliamentary Assembly of theCouncil of Europe.Resolution 1372 (2004): http://assembly.coe.int/main.asp?Link=/documents/adoptedtext/ta04/eres1372.htm 91) СМИ винформационном взаимодействии власти иобщества. Материалывсероссийской конференции. –М., 2005. С.146. 92) See: Point1ofthe Recommendation 1641 (2004) “Public Broadcasting” of theParliamentary Assembly of theCouncil of Europe at: http://assembly.coe.int/main.asp?Link=/documents/adoptedtext/ta04/erec1641.htm 93) Forits text (in Russian) after thefirst reading, see: Законодательство ипрактика СМИ. No.9,1997.

This situationcaused theParliamentary Assembly of theCouncil of Europe to urge theRussian authorities to create conditionsfor pluralistand impartial broadcastingmedia by meansof“establi- shinganindependent public service broadcaster andanindependent regulatory authority forthe broadcastingsector in linewith Council of Europe standards.”94

Expertsbelieve that in the1990s theauthorities viewedthe creation of asystem of strict supervision of state-run broadcastersbyindependent boards as arealistic andfast waytointroduce a specific Russian modelofpublicbroadcasting. But as we shall see below these expectations havefailed (see III.1.c). 95

Even though up until now legislation in this fieldhas notbeen successful, severaladditional attemptstointroduce public service broadcastinglawshavebeen undertaken. Thelatest bill on public service broadcasting wasdrafted by Prof.Mikhail Fedotov andset forwardfor public discussion by the Russian Union of Journalists (RUJ). It wasofficially introduced to theDuma in 2002 by agroup of liberal deputies.

From 2001, theRUJ supported thepublic Foundation to DevelopPublic Broadcasting, alobbying andresearch centre, which hadfor abrief period of timeaboardoftrustees that includedMikhail Gorbachev,German Gref (thenMinisterofEconomic Development) andanumber of cultural and political figures. 96 Unfortunately,the activelife of theFoundation wasshort andresulted in no progress forthe bill on public broadcasting. In 2003, thedraft law wasrejected by theState Duma.

At about thesametime, anumber of local billsonpublic broadcastingweredeveloped with the assistance of theFoundation in theconstituencies of theRussian Federation (includingthe Moscow andTomsk regions). They envisagedeither thecreation of apublic TV production companyfundedby apercentage of theregional budget, or thetransformation of alocal state controlled broadcaster into apublic TV company. All billswererejected in 2006 by regional legislatures on thegrounds that the regulation of broadcastingactivities camewithin theexclusivecompetence of thefederal authorities. TheFoundation itself has been defunct since about that time. c. Contentobligations for state broadcasting

TheFederal Statute On theOrder of Coveringthe GovernmentAuthorities’ Activitiesinthe State Media of 13 January 199597 obliges state-run national audiovisual companiestoprovidecoverage foranumber of public events (President’saddresses,inauguration ceremony, State Duma’sopeningsessions, etc.). They mustinform thepublicofthe most importantactionsofnational public bodies (exercisingthe constitutional authority vested in theDuma andthe President, etc.)onthe day these happen. They shouldoffer information on their daily activities as aseparate item of thenews programmes.The Statute introduces an obligation forstate-run television to provideacomprehensive, objectiveand unbiased coverage of theactivitiesofthe national government, parliamentand courts. TheStatute is notbeingimplemented in practice,since theFederal BroadcastingCommission that wassupposed to oversee andcontrol theimplementation of theact has neverbeen established. Similar acts were adopted in severalregionsofRussia andtothe sameeffect.

Just recently,on12May 2009, PresidentDmitry Medvedev signed into law theFederal Statute On Guarantees of Equality of Parliamentary Parties as to theCoverage of their Activities by theState-Run General TV andRadio Channels.The Statute dealswith thecoverage of thepoliticalparties represented as factionsinthe State Duma (thenationalparliament) by state-runbroadcastersother than special

94)Resolution 1455 (2005) “Honouringofobligationsand commitments by theRussian Federation”.See: http://assembly.coe.int/main.asp?Link=/documents/adoptedtext/ta05/eres1455.htm 95) See: Public Service BroadcastingRegulation in theCommonwealth of Independent States.Special Report on theLegal Framework forPublic Service BroadcastinginAzerbaijan, Georgia, Moldova,Russia andUkrainebyAndreiRichter &Dmitry Golovanov,edited by SusanneNikoltchev.European Audiovisual Observatory,Strasbourg, France.November 2006. See http://www.obs.coe.int/online_publication/reports/publicservicebroadcasting_cis.pdf.en 96) See more on thedraft in: Public Service BroadcastingRegulation in theCommonwealth of Independent States.Special Report on theLegal Framework forPublic Service BroadcastinginAzerbaijan, Georgia, Moldova,Russia andUkrainebyAndrei Richter &Dmitry Golovanov. Op. cit. 97) AvailableinRussian at: http://www.medialaw.ru/laws/russian_laws/txt/3.htm

sports, culture, music andchildren’schannels. TheStatute shall notapply duringthe period of election campaigninginthe mass media (which meansfor theperiod of 28 daysprior to theballot day) when theFederal Statute On Basic Guarantees of Electoral Rights andthe RighttoParticipate in a Referendum of theCitizensofthe Russian Federation takes precedence.

TheStatute,that entered into forceon1September 2009, dealswith theactivities of theparty administrative bodies,factionsand thedeputies at all levelsofstate andmunicipalauthorities.Ifparty membersare notexplicitly identified in this function (e.g. thePrimeMinister or Cabinetministers) in abroadcast, thetimeallotted to them shall notbecounted. Information about theparliamentary parties shall be equal as to thetimeallocated to them (computedonamonth-by-month basis) on national TV,national radio channels, regional TV,aswell as on regional radio channels. TheCentral Election Commission(CEC) shall oversee theadherence to theStatute.Ifequal timeisnot allotted, theCEC makes adecision to compensate theshortage of thecoverage within thenext30days. TheCEC shall publish an annual report on theobservance of theStatute in theofficial journal.98 Accordingto thefirst monthly reportsonthe implementation of thelaw therewerenoproblemsinequal distribution of air time. Forexample, in St. Petersburgeachparty gotroughly six minutes amonth on thelocal VGTRK TV channel.99

Theelectoral law foresees that duringelection campaignsbroadcastersthat areeither (i) funded (or co-funded) by state or municipal bodies,or(ii) subsidized completely or partially from thestate budgetoradministered by thebodies of local self-government, as well as (iii) those whose stock belongs to thestate or municipal bodies,shall provideequal conditionsfor election campaigningto registered candidates andelectoral associations.The airtimeshall be provided duringthe periods when TV andradio programmes areviewedand listened to by thehighest number of persons(e.g., Arts. 47, 50, 51 of the2002 FederalStatute On Basic Guarantees of Electoral Rights andthe RightofCitizensof theRussian Federation to Participate in aReferendum).

Theelectoral law setsout thepolicyfor grantingequal free airtimetoindividualsand political parties runningfor office.The system strives forfairness andfor themost part it has been implemented in an even-handedway,givingopposingvoices acertain degree of opportunity to reachthe public duringelectioncampaigns. However,news andpolitical affairsshows on statetelevision during election campaignsfar outweigh anypublic service provided forbyofferingfreeairtime(given that free airtimepolitical advertisementachieves farlowerratings than theregular news andcurrentaffairs shows).100

5. Media ownership andconcentration

As regards theownership of broadcastinglicences,the Regulation on Licensingof1994 is theonly piece of Russian law imposingspecific restrictions on theaward of abroadcastinglicence.Point13of this Regulationprevents alegal entity from obtaining“atelevision and/or aradio broadcastinglicence formorethan twobroadcastingchannelscoveringthe sameterritory,ifthe zones served overlap completely,orfor more than two-thirds of each zone, unless an existinglaw of theRussian Federation stipulatesotherwise”.However, this provision neither clarifies theuse of differentbands (AM, FM, SW, MW,etc.)bythe samestation, norrestricts anycross-ownership between broadcastingand press.As aresult, it does notachieve itsobjective.

In away,this provision reflectsArt. 10 of theStatute On theMass Media that requires thefounders of anymedia outlet to inform theregulatory authority about other media outlets“in whichthe applicant is afounder, owner, editor-in-chief in theeditorial office or distributor”.

98) Russian Federation: Equal Rights Law Passed by Andrei Richter,IRIS2009-7: 32. See thetextinRussian availableat: http://pda.rg.ru/2009/05/15/zakon-dok.html 99) See: http://www.lenizdat.ru/a0/ru/pm1/c-1079791-0.html#1 100) Public Service BroadcastingRegulation in theCommonwealth of Independent States.Special Report on theLegal Framework forPublic Service BroadcastinginAzerbaijan, Georgia, Moldova,Russia andUkrainebyAndreiRichter &Dmitry Golovanov. Op.cit.

However, as Art. 10 does notstipulate anylegal repercussionsfor an applicantarisingfromthis data, this information has no effect on thedecision to grantthe registration certificate.Recently, Roskomnadzor seemstohaveadopted apolicyofignoring possibleviolationsofPoint13ofthe Regulation. Andthis provision is likely to be abandonedsoon.

Moreover, thereisnospecific antitrust regulation in regardtomedia, andthe existinggeneral antitrust framework is notapplicableinthis context.

Theregional legislativebodies tried to compensate forthis legal omission by adoptingtheir own antitrust regulationsinthe mass media field.101 This is no longerpossibleasall regional acts on the mass media were either abolished or watered downinthe early 2000s.

When exploringthe regulation on media concentration in thetelevision sector,itishardtobypass theissue of state property andcontrol. TheRussian TV sector wasconsidered as atop priority sphere of ideological influence on thegeneral public duringthe eraofPresidentVladimir Putin. 102 This remainstrue today.Morethan aquarter of thepopulationcan still watchjusttwo terrestrial TV channelsand those channelsare likely to be state-run:accordingtoTNS Gallup Media thecombined yearly audience shareofjusttwo channels–state-owned Rossia andstate-runChannel One–is 40.9%.103 Thestate-runTVchannelsdominate theRussian market in thecoverage of territory,volume of advertising, andthey enjoy beneficial tariffsfor dissemination of signal.

At thesametime, deficiencies in themass media law andinanti-monopolylegislation makeit almost impossibletoregulate media concentration, includingfor thebroadcastingsector.Hence,itis no wonderthat only acoupleofcases whereconcentration of broadcastingwas invoked ledtothe intervention of theFederal Antimonopoly Service (FAS). They are, all themoreso, of interest.

Thefirst case dealt with themonopolisation of terrestrialsignaldissemination by anational monopoly.Itconcerned theRussian Television andRadio BroadcastingNetwork (RTRS) which owns 14 478 television transmitters, or 90.9% of thetotal number.Its generaldirector is appointed by the Presidentofthe Russian Federation. Established as astate broadcastingcompanybypresidential decree in 2001, thenetwork disseminatesTVand radio signalsthroughout Russia andensures Russia’s audiovisual presence abroad. RTRShas also been assigned amajor role in makingthe transition to a common national standardfor digital television andradio broadcasting.104

Thecase started when Anatoly Greshevnikov,adeputy of theState Duma, complained to theFAS claimingthat theFederal State Unitary Enterprise “Main Radiofrequency Centre”105 in theYaroslavl region tried to prevent entrepreneurial activities of thecommunicationscompanyBintel in thecity of Rybinsk. Greshevnikov alleged in particular that RTRSprevented Bintel from usingradio frequencies, necessary to providethe transmission of 12 over-the-air TV programmes in Rybinsk usingthe MMDS system.106

In November 2003, Bintel hadlegally obtained therighttouse thefrequencies assigned for transmittingthe 12 programmes,bywinningatenderorganised by theMinistry of Communications. The companythough hadtowait foralmost four yearstoget theactual permission from thelocal RTRSunit to usethe relevant radio frequencies,without which it couldnot start offeringthe above services.Bintel repeatedly approached theRadiofrequency Centreonthe issue but thepermissionsweregranted only in March 2007. On 26 July 2007, FASfoundthat theRTRSunit hadbreachedArt. 10 para. 1(abuse of a dominantposition) of theFederal Statute of 26 July 2006 On Protection of Competition (No. 135-FZ). 107

101) See examples in: Sklyarova Ya.(TheMoscowMedia Law andPolicyCentre) TheRussian System of LicensingofTelevision andRadio Broadcasting. Op. cit. 102) Digital Television in Russia. Op. cit. P. 41. 103) Ibidem. P. 60. 104) See: http://www.kremlin.ru/eng/text/news/2008/10/208317.shtml 105) Aunit of RTRSwhich consist of atechnical service to providedissemination of thesignal. 106) See also Russian Federation: OrdertoHoldMMDS CompetitionsbyOlgaMotovilova,IRIS2003-6: 14, availableat: http://merlin.obs.coe.int//iris/2003/6/article29.en.html 107) See thepress release of 26 July 2007 “Main Radiofrequency Centre” at: http://www.fas.gov.ru/english/news/n_14389.shtml?print. Forthe text of theFederal Statute No. 135-FZ of 26 July 2006 “On Protection of Competition”inEnglish (non-official translation) see: http://www.fas.gov.ru/english/legislation/8955.shtml

Another peculiar incidenthad to do with themonopolistic dominance of alocal cableTVnetwork. In January 2006, theprivate cablenetwork “Altair” in thecity of Tula abruptly switched offthe local TV programmePlus-12 despite thecontractthat existed between thetwo companies.The cablenetwork alleged that thereason forterminatingtheir serviceswerecapacity limitationsdue to aswitch-over from analogue to digital television. Nevertheless,two weekslater,three new programmes were added to thebasic package of Altair.The case becamewidely knownwhenPlus-12 turned out to be theonly channel oppositional to thelocal authorities.Alocal Arbitration Court turned downthe complaintfrom Plus-12, but thecompanyalsocomplained to theFAS andthe Public Chamberofthe Russian Federation (see more on theChamber below). More thanthree months later, theTula regional office of FASdecided that Altair hadabused itsdominantposition andorderedittoconclude within amonth anew contract with thecompanythat ownedthe Plus-12 TV channel.108 Unfortunately,bythat timethe TV company hadgonebankrupt andhad ceased to exist.109

6. Foreign property

Media ownershiprules aremuchmoreprecise on thelegality of foreign investments in broadcasting than on media concentration. Russia utilises variouslegal instruments to limit foreign ownership and control of themass media. Thereby, it aimstoprotect thenational sources of informationagainst political influence from abroadand also domestic businesses against thepoweroftransnational corporations.Ofall thetypesofmass media, theone that enjoys thehighest level of protection against foreign expansionism is themost influential andaccessible: television.

Art. 7(“On Founders”) of theStatute On theMass Media wasadopted in 1991 to ban theestablishment of media outletsbynon-residentforeign nationalsorstateless persons. In essence,however, it allowedforeign legal entities to start media outlets. Tenyearslater,this provision seemed to be internally controversial andnot strict enough. TheFederal Statute of 4August 2001 (No.107-FZ) then addedtothe Statute On theMass Media anew Art. 19.1 (“LimitationsRegardingFoundingofTelevision, Video Programs, as well as of Organisations(Legal Entities) that Carry on Television Broadcasting”) that extendedthe ban forforeign citizenstoforeigncompanies and“dual citizens”. Thenew article prescribed that:

“A foreign legal entity,aswell as aRussian legal entity with aforeign participation, wherever theshare(input) of theforeign participation in thestock (joint) capital equalsorexceeds 50 percent, acitizen of theRussian Federation with adual citizenship, may notact as founders of television, video programs.

Acitizen of another state,astateless person andacitizen of theRussian Federation with adual citizenship, aforeign legal entity,aswell as aRussian legal entity with aforeign participation, whereverthe share(input) of theforeign participation in thestatuary (joint) capital equalsor exceeds 50 percentmay notact as founders of organizations(legal entities) that carry on television broadcastingoftheir programsoverahalf or more of thesubjectsofthe Russian Federation, or theterritory whereahalf or more of thepopulation of theRussian Federation lives.

No provision shall be made forgivingawayits stock (shares) by thefounderofatelevision, video program, –alsoifthat happensafter itsregistration, or by theorganisation (legal entity) that carries on television programmes to half or more of thesubjectsofthe Russian Federation, or overthe territory wherehalf or more of thepopulation of theRussian Federation live, if this wouldleadtothe appearance in itsstatutory (joint) capital in shares (input) of foreign participation that equalsorexceeds 50 percent.”110

108) See: http://www.fas.gov.ru/news/n_7248.shtml 109) See: Richter A. Правовые основы журналистики. Учебник. М., 2009. P. 187-188. 110) Thetextofthe statute is availableinEnglish at: http://medialaw.ru/e_pages/laws/russian/massmedia_eng/massmedia_eng.html

Theaddendum seemed to put in dangerthe very possibility of broadcastingvia cableand satellite hundreds of foreign programmes.The reason is that to be broadcast in Russia, aprogrammemustbe registered as amass mediumoutlet. To do that it musthavefounders whoprovidethe necessary papers to Russian federal authorities.Activitiesconcerningthe retransmission or rebroadcastingofpro- grammes do nothaveaseparate legal statusunderRussian media law.BroadcastingaccordingtoArt. 2 of theStatute On theMass Media equalsthe dissemination of mass media products. In practice,the application of this provision has establishedalegaltradition wherebythe authorities,onthe onehand, do notpress foreign programmes to be registered in Russia (with someexceptions), and, on theother, areinnohurry to clarify thestatusofrebroadcastinginRussian law.This mightchange as in September2009 Roskomnadzor suddenly announced itswish to check all cableoperatorsinthe country in ordertoestablish if theforeign stationsthat rebroadcast through their systemshad Russian media registration certificates. 111

Forthe timebeing, numerous western cableand satellite channelsare widely availableinRussia without beinglicensed or formally established thereasregistered mass media outlets. At thesame time, cableand satellite networkswithholdaccess or set up prohibitiveentry fees (up to EUR 30 million annually) forchannels“dangerous to national security”.Among theprogrammes which, forexample, cannot getaccess to viewers in Moscowand other key marketsare lively Russian-language general interest programmes such as Belarus-TV112 andthe RTVi, which is oppositional to theKremlin and belongs to apolitical émigré, Vladimir Gusinsky. 113

Further restrictionsonforeign ownership in broadcastingcameon7May 2008 with theentry into forceofthe Federal Statute On theProcedures of Foreign Investments in Commercial Joint-stock Companies that PresentStrategic Importance forthe Defence andSecurityofthe Nation (No. 57-FZ of 29 April 2008).Among theactivities that areconsidered to havestrategic importance forthe defence andsecurity of thenation, aretelevision andradio broadcastingtransmitted to aterritory wherehalf or more of thepopulation of anygiven province (subject) of theRussian Federation live. This includes thecities of Moscowand St. Petersburg(paras.34and 35 of Art. 6).

If aforeign investor is involved in such abusiness,heshall inform thegovernmental agency (currently theFederal Antimonopoly Service) of anycontractthat resultsinobtainingfiveormore percentofthe stock of astrategic company(Art. 14). Theproceduredifferswith respect to dealsthat provideaforeign investor with 50 percentormoreofownership, as well as those that giveforeigners rights to appointthe management of astrategic company. Such dealsneed aprior permission from the governmental agency (Art. 7). Prior permissionbecomes obligatory also fordealsthat provideforeign governments, international organisations, as well as entities undertheir control with adirect or indirect rightto25percentofthe stock of astrategic companyorany other meanstoblock decisions of itsmanagement,but no permission shall be granted fordealsleadingtothe acquisition of amajority of thecompany’sshares (Arts. 2and 7). Dealsand contracts concludedwithout followingthe necessary prior procedurewill be declared null andvoid.114

However, thepracticeinRussiademonstrates that foreigncompanies andindividualsactuallyenjoy muchgreater freedom to run andown media outletsthan thelaw allows. This issue is handled by the governmentwith asideways glance at thelaw but more often with political andeconomic expediency in mind. “Expediency”inthis context meansallowinginvestmentinthe entertainmentand politically neutral media andactivities that do notimpinge on crucial aspectsofthe state’sinformation security. Forexample, oneofthe popular national networks Ren-TV,which mostly runsentertainmentfare, belongs for30% to theGerman companyRTL andthe foreign companycan definitely influence its policy.115

111) See: http://lenta.ru/news/2009/10/05/channels1/ .Accordingtothe samereport currently only BBC andEuronews have such certificates amongall foreign broadcasters. 112) Accordingtonews reports, see: http://naviny.by/rubrics/society/2009/04/10/ic_news_116_309378/ , http://naviny.by/rubrics/society/2009/04/01/ic_articles_116_161957/ andhttp://www.sputniktv.at.ua/news/2009-04- 10-431# 113) See,e.g. Novaya gazeta report, availableat: http://www.novayagazeta.ru/data/2008/41/11.html 114) See: Russian Federation: NewStatute to Curb Foreign Investments in Media by Andrei Richter.IRIS2008-8: 18, available at: http://merlin.obs.coe.int/iris/2008/8/article32.en.html 115) Digital Television in Russia. Op. cit.

An exampleofhow theregulatory authority interfered into aforeigner’sacquisition of abroad- castingcompanywas that of “Catalpa Investments”. Thecompanywas reported in theRussian press to representThe Walt Disney Company.116 On 11 October 2008, Catalpa petitioned theFederal Antimonopoly Service to clear theacquisition of 49% of shares of aRussian private liability company “MO-TV Holdings Limited” forUSD 233 million. 117 Theplanwas to establish afreeover-the-air children’s television network in Russia. MO-TV Holdings Limited is related to Media-OneTVwhich owns 30 to 40 regional TV stationsaccordingtodifferentreports. It turned out that thedeal wouldhaveenabled the purchaser to determinethe termsofthe business activity of economic entities operatinginthe Russia Federation. Documents submitted with thepetition to FASreportedly contained incorrect information andpointed to apossibility of putting“MO-TV Holdings Limited”undercontrol of aforeign company.

Under theFederal Statute On Protection of Competition of 26 July 2006 (No. 135-FZ), the antimonopoly authority shall dismiss apetition if theinformation, presented in thepetition and importantfor theauthority’s decision-making, is incorrect (Art. 33 para. 5section 2).118 TheCatalpa petition wasdismissed on 12 February 2009.119 Andrei Kashevarov,deputy head of FAS, explained then that theincorrect information related to theissue of how farthe influence of Disney wouldreach in theoperationsofthe futurecompany. Therewerealsomisprints anddiscrepancies in English and Russian texts.120

Subsequently Robert A. Iger, Presidentand Chief ExecutiveOfficerofThe Walt Disney Company , lobbied to meet with PrimeMinister Vladimir Putin, but themeetingdid nottakeplace. 121 At that time, observersbelievedthat thedecision of FASwas motivated notbylegal technicalities but by apolitical decision andconcern for“information security”. 122 In May 2009, Disney officially walked away from thedeal, andMO-TV Holdings Limited now reportedly planstomerge with thecompanyofthe Russian media mogul Alisher Usmanov.

II. Specific areas

1. Right of reply

Art. 43 (“Therightofrefutation”) of theStatute On theMass Media vestsevery natural or legal person with therighttodemandretraction of information that does notcorrespondtoreality and denigrates theperson’shonour anddignity from theeditorial office of theprintorbroadcast media that spreadthe information.The samerightbelongs to thelawful representatives of theperson, if he himself has no opportunity of demandingrefutation(forexample, parents of minors). If theeditorial office of amass medium does notpossess evidence of thefactthat theinformation it has disseminated corresponds to reality,itshall be obliged to refute this information in thesamemass medium. In order to comply with such an obligation, theeditorial office may either withdraw theinformation andstate that it is false/not provenorprove in court that theinformation is correct.

If anatural or legal person targeted by falseinformation has submittedatextofrefutation to the responsible editorial office, thelatter shall disseminate this text provided it complies with the requirements of theStatute On theMass Media (meaning, forexample, it does notabuse freedom of mass information). Theeditorial office of theradio or television programme, which is obliged to disseminate therefutation,may enablethe person or therepresentativeofthe legal person who demandedthe refutation to read out his owntextand then transmit itsrecording.

116) See,e.g. ФАСнеразрешила Walt Disney купитьдолювроссийском медиахолдинге , http://lenta.ru/news/2009/02/24/disney or Микки-Маусанеждут вРоссии. Ведомости 24 февраля 2009. 117) Детскому телеканалу показали$233 млн. Коммерсант 5февраля 2009 118) See itstext(in English) at: http://www.fas.gov.ru/english/legislation/26940.shtml 119) Press release of 20 February 2009 “Catalpa Investments Limited”.See: http://www.fas.gov.ru/english/news/n_22424.shtml?print 120) Микки-Маусанеждут вРоссии. Ведомости 24 февраля 2009. 121) Disney отключили от телевизора. Коммерсант 5февраля 2009. 122) ФАСнеразрешила Walt Disney купитьдолювроссийском медиахолдинге, http://lenta.ru/news/2009/02/24/disney/

Art. 44 (“TheOrderofRefutation”) of theStatute stipulates that therefutation shallindicate which information does notcorrespondtoreality,whenand how it wasdisseminatedbythe given mass medium. On television, therefutation shall be transmitted at thesametimeofday and, as arule, in thesameperiodic programmethat contained therefuted report or material.

Thelength of refutation may notexceed twice thelength of therefuted fragment of thereport or material.The refutation transmitted overtelevision shall takeatleast theairtimerequired forthe announcer to read out onestandardpage of typewritten text.

Therefutation shall takeplace:

•inmass media that areaired at least once aweek –within ten daysafter reception of thedemand forrefutation or of itstext; •inother mass media –inthe issue in course of preparation or in thenextplanned issue.

Within onemonth of havingreceived thedemandfor refutation or itstext, theeditorial office must notifyinwritingthe interested natural or legal personaboutarrangements forthe precise time scheduled forthe dissemination of therefutation or about therefusal to disseminate it. In thelatter case,the grounds forsucharefusal mustbeexplained.

AccordingtoArt. 45 arefusal of refutation is notonly legal but evenmandatory,ifademandor thesubmitted text forthe refutation:

•represents an abuse of thefreedom of mass information in thesense of thefirst section of Art. 4 of theStatute On theMass Media; •contradictsacourt decision on thecase in question provided that thedecision has entered into legal force; or •isanonymous.

Therefutation may also be denied:

•ifitrefutes information that has already been refuted by thegiven media outlet (for examplein adifferentprogrammeorcontext); or •ifthe demandfor refutationorthe submitted text wasreceived by theeditorial office ayear or more after theday of thedisseminationofthe refuted information by thegiven media outlet.123

In accordance with thecivil procedurelegislation of theRussian Federation, therefusal of refutation or an infringement of Art. 44 of theStatute On theMass Media may be challengedincourt within oneyear of theday when thecontested information wasdisseminated.

In addition to therightofrefutation, Art. 46 of theStatute On theMass Media provides forthe righttoanswer. It stipulates that anatural or legal person, in respect of whom amass medium has disseminated information that runscounter to reality or impingesonthe rights andlawful interests of thecitizen, shall havethe righttopresentananswer(commentary or retort) in thesamemass medium. Theprocedureofthe rightofrefutation applies in full to therighttoanswer.

TheCivil Code of theRussian Federation,adopted three yearsafter theStatute On theMass Media, stipulates in Art. 152 (“Defamation andBusiness Reputation”) that (para. 1) “A citizen can demand in acourt trial therefutationofthe informationdenigratinghis honour anddignity andbusiness reputation, if theperson responsiblefor disseminatingthis information does notprove that it corresponds to reality.” Upon request of interested persons, theprotection of adeceased person’s dignity andhonour can be admitted. It further clarifies that (para. 2) “if information denigratinga citizen’shonour,dignity andbusiness reputation wasdisseminated by amass media outlet, it shall be refuted in thesameoutlet of mass media.”

123) This term of expiration forarefutation still allows aperson to fileacivil law suit on defamation in accordance with Art. 208 of theCivil Codewhich establishes no timelimit forprotection of non-material values.

Acitizen, whose rights or other interestsprotected by law havebeen denigrated in amass media outlet has therighttoreply in thesamemass media (Art. 152 para. 3Civil Code).

Finally,the Civil Codeclarifies that theprovisionsofArt. 152 about theprotection of thebusiness reputation of anatural person apply correspondingly to theprotection of thebusiness reputationof alegal person.124

It shouldbenoted that therighttorefutation is used in broadcast media,125 whileweare notaware of instances of the(legally possible) useofthe righttoanswer.

2. Product placement

TheFederal Statute On Advertising (2006) provides forninetypes of advertisingtobeexemptedfrom theruleofthe law (Art. 2para. 2). Product placementisthe last in thelist of exceptionsand is characterised as “references to products, meansofits identification (e.g. nameortrademark), to its producer or to theseller of theproducts, which areorganically integrated into worksofscience, literatureorartsand arenot per se information of advertisingnature”.This in essence meansthat product placementdoes notfall underadvertisinglegislation andthus is unrestricted in all media.

In this regard, theviewpointofAndreiKoshevarov,adeputy head (in charge of advertising) of the FederalAntimonopoly Service (FAS), is important.The FASfunctionsasthe governmental watchdog foradvertising. Koshevarov believesthat the“issue of legal regulation of this phenomenon [product placement] remainsopen”. 126 He andother expertsquote asinglecase in 2003 when theFAS supposedly made adecision on product placement. In this matter,Channel Onebroadcasted aNew Year show “Zolushka” (Cinderella) therebydisplayingavodka bottleofaparticular brand. TheFAS fined Channel OneRUB 40 000 anddirected theTVcompanytocut thescenes with thebottleand when theshow wasre-broadcast thenextseason, references to thevodka were indeed excluded.127 In fact, thedecision wasjustifiedbythe factthat theoriginal broadcastinghad violated thetotal ban on advertisingof alcohol drinksonTV. It did notrelate to product placementasaphenomenon. Because this is theonly andadditionally arather oldcase (decided underthe previousFederal Statute On Advertising) where product placementwas part of thefacts andbecause thedecision did notturn on judgingthe product placement, we cannot really speak of agovernmental policyinthis regard.

In theoreticaldiscussions,128 therehavebeen attemptstoput product placementunderthe category of subliminal advertising.129 TheStatute On Advertisingcategorises thelatter as advertising, which affectsthe consumers’ consciousness in asubliminal wayand introduces thefollowingclarification: “in particularbymeansofuse of special video inserts(doubleaudio recording) or by other means”. Such advertisinginaudiovisual media is banned (Art. 5para. 9). These expert opinions, tacitly supportedbythe FAS, conclude that product placementisone of the“other means” of subliminal advertisingmentioned in this norm. They also stress that in thecase of product placementthe most difficult task is to determinewhether or notthe alleged product placementwas organically integrated into worksofscience,literatureorarts. Theway out of subjectivism here,expertssay,istoget either

124) Seethe text of therelevant articles of theCivil CodeavailableinEnglish at: http://medialaw.ru/e_pages/laws/russian/ccde-en.htm On 24 February 2005 thePlenumofthe SupremeCourt of theRussian Federation issued aDecision “On Judicial Practice At Disposal Of Cases on Protection of Honour andDignity of Persons, andalsoBusiness Reputation of Personsand Legal Entities” which further detailed these provisions. Its full text is availableinEnglish at: http://medialaw.ru/e_pages/laws/russian/supc-24-2005.htm 125) See,e.g.: http://www.fssp06.ru/index.php?mact=News,cntnt01,detail,0&cntnt01articleid=164&cntnt01returnid=51 126) Кашеваров А. Б.Актуальные вопросы практикиФАС России всфере рекламной деятельности изащиты конкуренции, Арбитражное правосудие вРоссии. №3, 2008. See also: http://www.fas.gov.ru/article/a_17729.shtml,http://dlrr.ru/news.php?idnews=57 ,and http://www.fas.gov.ru/article/a_6956.shtml 127) Ibidem. See also: Чубукова, И .Product Placementvs закон орекламе, Управление компанией. 7 February 2008. See http://www.fas.gov.ru/article/a_17149.shtml andhttp://www.utro.ru/articles/2004/07/14/329647.shtml 128) See,e.g.: Романов А. А. Закон ииндустрия скрытой рекламы. Реклама иПраво, №2,2006, or Чубукова, И. Product Placementvs закон орекламе. Управление компанией . 7February 2008. See http://www.fas.gov.ru/article/a_17149.shtml 129) TheRussian term скрытая реклама –hiddenadvertising–includesboth notionsofsubliminal andsurreptitious advertising.

evidence from “authoritativespecialists”orresultsofsociological polls. If theevidence obtained confirmsanartificial character of theinsertsofproductsand trademarks, then product placementfalls underthe advertisinglegislation.Inthat case,all rules of theStatute On Advertisingmustapply.For example, if thelaw allows forbeer to be advertisedonTVaccompanied with awarningmessage from 10 p.m. to 7a.m. only,thenthis shouldapply to worksofart with non-organic artificial product placementofbeer products. Likewise,because thelaw prohibitsdisplayingbeer drinkinginadvertising, thereshouldbenosuchscenes in non-organic product placement. Smokingofbrand cigarettes,ifnon- organic, shall also be banned in films, etc. Overall timelimitsonadvertisinginthe mass media should then be calculatedincludingthe timeused forproduct placement.130

Irina Chubukova,alawyer with amajor law firm in Moscow, identifies three criteria forproduct placementthat in thecontext of Russian legislationand international experience allow it to be labelled as advertising:

•The object –aproduct or trademark –can be pulled out from theworkswithout anyloss to its creativevalue. •The placementpresents advertisingvalue,that is,itpromotes or advances interest in aproduct or service,trademark, producer or seller of theproduct (or service). •The placementofaproduct or aservice,trademark, or nameofaproducer is remunerated and thefactofremuneration of product placementcan be confirmed by acontractbetween the authorsand advertisers.

Whether it is possibletoapply these criteria of product placementtofilmsand TV series remains an open question too, aquestion without positiveornegativeanswerinthe advertisinglegislation. Aspecial challenge forany method of advertisingconsistsindefiningatwhat pointadvertisingbegins andwhere it ends.Whenadvertisingbecomes an integral part of awork of art, it becomes difficult to framethose of itsfragments which arepureadvertising.

It mustberecalled, that this is just adiscussion without anyimmediate impact on product placement. TheFAS has notyet taken aclear position on thisquestion, although theincrease in product placements mightexpedite changestothis situation.

Therewerealsoattemptstolabel product placementas misleading advertising. This is hardly possiblebecause by law “misleading” is understood exclusively as thewithholdingofessential information on theproduct anddistortion of such information in advertising(Art. 5para. 7ofthe FederalStatute On Advertising).

Theabsence of an accurate legal understandingand anyregulation of product placementgenerates onemorepractical problem, namely uncertainty as to the contractual regulation of product placement. It is very difficult to formulate thesubject matter andessential contractprovisionsfor arranginga product placement. Whilecurrently relationsbetween advertisersand advertisingagencies lie within theestablished andlegally well-developed framework of agency contracts or contracts on therendering of services,the issue of creatingand placingaproduct in awork of art demands anew kindofcontract, which still needs to be developed. Thereisnotemplate that mightbecopied, andlawyersuse anytype of contractthat seemsconvenientfor their purpose.And evenmoreoften, obligationsexist only at theleveloforalarrangements.This considerably complicates thepossibility foranexact fulfilmentof anyobligation.

As amatter of fact, contracts on product placementare agreements on renderingservices andare thereforeregulated by Chapter 39 of theCivil Codeofthe Russian Federation. Accordingtoatypical contractonrenderingofadvertisingservices forcompensation, theservice provider undertakes to take certain actionsortocarry out acertainactivity accordingtothe instructionsofthe customer.The customer,inturn, is obliged to pay forthe services rendered. Thus forthe customer thefollowing provisionsare essential:

130) Чубукова, И. Product Placementvs закон орекламе. Управление компанией . 7February 2008. See: http://www.fas.gov.ru/article/a_17149.shtml

•Definition of thesubject matter of thecontract, i.e.those actionswhich theservice provider is obliged to carry out within theframework of thepreparation of an advertisingcampaign andhow they aretobecarried out; •The timeframe forlaunchingthe advertisingcampaign given that thecustomermightbe interested in theadvertisingtotakeplace onlyduringaparticularperiod of time.

Acontractfor advertisingservices may coverany kindofproduct placementasitregulates themain contractual relationsand aims–renderingofservices to promote acompany, itsbrand,its product and services. 131

3. Right to short reporting

Russian law speaksofaphenomenonsimilar to theEuropean righttoshort reportinginArt. 1274 (“Thefreeuse of awork forinformation, scientific,educational or cultural purposes”) of Part 4ofthe Civil Codeofthe Russian Federation (Chapter 70 –CopyrightLaw). This articlestipulates theadmis- sibility of usingworksoncurrenteconomic,political, social andreligiousissues as well as reproducing these worksinbroadcastsorcableprogrammes,unless such areproduction or announcementhas been specifically prohibited by theauthor or other rightholder. Thelaw does notrequirethe consentofthe author or other rightholderand does notimpose theobligation of payingfor theuse.Itrequires merely that references to thenameofthe author whose work is used andtothe source be made.The law also allows, underthe sameconditions, reproducinginbroadcastsorcableprogrammes publicly pronounced politicalspeeches,addresses,reportsand other similar workstoanextentjustified by informationpurposes; furthermore, it allows thecommunication to thegeneral public (bymeansof broadcastsorcableprogrammes reviews)ofworkswhich areseen or heardinthe course of current events if justified forinformationpurposes. 132

The development of Russian onlineresources with thecapability to disseminate video materialshas just recently ledtolaw suitsonillegal copyingand distribution overthe Internet of audiovisual works originally broadcast on TV.Inparticular,the VGTRK TV HoldingCompanysued on 22 October 2008 the communicationsportal Mail.ru andthe social network Vkontakte.ru forillegal distribution of theworks “pirated” from itsTVchannels. It demandedthat Mail.ru andVkontakte.ru stop theillegal dissemination of copyrighted worksand that they each pay RUB 3millionincompensation. In November 2008, theVGTRK reachedanout-of-court agreementwith Mail.ru pursuanttowhich thelatter will share advertisingprofitsinexchange forthe legal permission to continue thedisputed distribution.

But thecompanythat owns Vkontakte.ru refused to adhere to thedemands of theVGTRK. Themost recentreportssay that in June2009 court proceedings in an Arbitration Court of St. Petersburg continued. In particular,the court acknowledgedanotary verification that aRussian featurefilm “Ostrov”(Island) broadcast by theVGTRK hadbeen made availableonawebpage of thesocial network.

In February 2009, theVGTRK struck an out-of-court deal with thesearch engineRambler.ru accordingtowhich thelatter is permitted to disseminate TV broadcastsinexchange forfreeadvertising of thenews website Vesti.ru run by theVGTRK.133

Earlier,on17April 2008, theVGTRK ledagroup of major news outletsinaninformal initiativeto work out alegal mechanism forcombatingpiracy by Internet websites andInternet-based media.134 Thecampaign resulted in abill amendingthe Statute On theMass Media andthe CodeofAdministrative Violationsofthe Russian Federation of 30 December 2001 (No. 195-FZ). Thebill wassupported by the Ministry of Communicationsand Mass Communicationson10June2009 when it wasdiscussed at the

131) Чубукова, И. Product Placementvs закон орекламе. Управление компанией . 7February 2008. See: http://www.fas.gov.ru/article/a_17149.shtml 132) See thefull text of Chapter 70 of the4th Part of theCivil CodeavailableinEnglish at: http://civil-code.narod.ru/chapter70-copyright-law.html 133) See news report at: http://interfax.ru/society/txt.asp?id=40987 and http://www.infox.ru/business/media/2009/06/26/VGTRK.phtml 134) http://www.urisconsult.spb.ru/info/45/

inaugural meetingofthe Council on Mass Communications, aprofessional advisory body at the Ministry.The bill suggestsconsideringInternet platforms as mass media, andprovision of public access to Internet contentasaform of dissemination of mass information. It also introduces administrative liability forviolation of copyrightofnews agencies. 135

4. Protectionofpublic morals

TheStatute of theRussian Federation On theMass Media states in Art. 4(“Inadmissibility of Abuse of theFreedom of Mass Information”):

“No provision shall be made forthe useofmass media forpurposes of committingindictable criminal actions, divulginginformation constitutingastate secretorany other secret protected by law,for dissemination of materialsthat contain public callstocarryingout terrorist activities or that publicly justify terrorism, other extremist materials, andalsomaterialspropagating pornographyorthe cult of violence andcruelty.”136

Forthe latter type of materials, theexistinglegal restrictionsaimed in particular at protecting minorsfrommaterialsofapornographic natureare formulated toogenerally.For example, thelaw containsnoexplanation as to what “propaganda” is.Atthe sametime, anycase of abuse of thefreedom of mass information registeredbyRoskomnadzor potentially leadstothe closureofamass media outlet (see above).

By imposingaban on thedissemination of pornographyand “propaganda of thecult of violence andcruelty”, lawmakersseek to protect public morals. Theconstitutional rulethat aperson may not exercise his rights in away that violates therights of other personsmakes theban possible. Art. 55 para. 3ofthe Constitution explicitly stipulates that “therights andliberties of personsand citizens may be restricted by thefederal statute to theextentrequired for(amongother things)the protection of …morality,health, rights andlawful interestsofother persons”.

Art. 242 of theCriminal Codeofthe Russian Federation of 13 July 1996, No. 63-FZ, establishes criminalliability forthe illegal distribution of pornographic materialsoritems. Acts constitutingthis offence include makingpornographic material with aviewtodistributing or advertisingit, andillegal trade in printed publications, film or video materials, picturesorother itemsofpornographic character. ThepenaltyisafineofRUB 100 000 to 300 000, or thewagesorother revenueofthe convicted person overthe period of onetotwo years, or imprisonmentfor up to twoyears.137 Accordingtostatistics of theMinistry of theInteriorofthe Russian Federation, in 2008, 1794 cases of illegal distribution of pornographywereregistered (compared to 3128 in 2007 and2876 in 2006). Underaseparate article of theCriminal Code(Art. 242.1), 223 crimes concerningdistributionand production of childporno- graphywereregistered in 2008 (compared to 137 in 2007 and248 in 2006).138

Severalattemptstopass astatute on protection of public morality havebeen made in Russia. On theother hand, theFederal Statute On Restrictingthe Circulation of Products,Services andPublic Events of Sexual Natureinthe Russian Federation (1996) wasneverenacted by thePresidentofRussia.139 Severalattemptstosolveproblemsincontrollingthe information environmentand protectingthe public from harmful information andmaterial havebeen undertaken by thelegislatures of thesubjects of theRussian Federation with respect to thelocal mass media. They targeterotic publicationsand programmes andsolvecertain problems.

135) Thetextofthe bill with acommentary is availableinRussian at: http://medialaw.ru/publications/zip/177/index.html 136) Thetextofthe Statute is availableinRussian at: http://medialaw.ru/laws/russian_laws/txt/2.htm 137) See forthe text in: http://medialaw.ru/laws/russian_laws/txt/34.htm 138) Accordingtoinformation of theState Duma: http://www.familycommittee.ru/parlamentskie_slushaniya_kruglye_stoly_i_inye_meropriyatiya/vyrabotannye_rekomend acii/rekomendacii_parlamentskih_slushanij_na_temu_o_sovershenstvovanii_zakonodatelstva_napravlennogo_na_borbu_s _detskoj_pornografiej/ 139) See information about thebill in: Protection of MinorsfromHarmful Information in theLaw of Post-Soviet States by Anna Belitskaya, IRIS plus,asupplementtoIRIS, Legal Observationsofthe European Audiovisual Observatory, Issue 2006-6.

Today,17subjectsofthe Russian Federation havestatutes dealingwith this problem. Dozensof pertinentlocal decrees andresolutionsofthe executiveand municipal bodies exist as well. They typically establish governmental bodiestoprotect morals. Such councilsare usually comprised of representatives of public organisations, cultural personalities,prominentfigures in literature, science andthe arts, representativesoflaw-enforcementagencies andofgovernmental commissionsonthe affairsofminors, as well as psychologists, medical doctors, teachers, andother experts. Thecouncils were established accordingtolocal regulations in ordertodeterminethe presence of eroticor pornographic contentinspecific mass media products, compilelistsofbanned films, etc.

Thereisstill no such body at thenational level, although theState Duma made an attempt to form it by adoptingthe draft FederalStatute On theSupremeCouncil forProtectingthe Morality of Television andRadio Broadcastinginthe Russian Federation in 1999. Thebill successfully passed through three readings in thelowerchamber,was approvedbythe Federation Council (upper chamber) but waseventually vetoed by thePresidentofRussia.140

5. Protection of minors

Protectingminorsfromthe influence of harmful information has been high on theagendaoflaw- makersinRussia foralmost twodecades. They believe that violence,cruelty andpornography, regularly depicted on television screensand on thepagesofmagazines andnewspapers, arenot conduciveto thehealthydevelopmentofchildren andare detrimental to their mental andmoral upbringing. Indecentorcruel imagesform skewedstereotypes of reasoninginthe consciousness of minorsthereby increasing therisk of futureantisocial behaviour. 141 Westernresearchers haveproventhat Russian news programmes show twice as muchviolence as similar programmes in theU.K. or Germany.142

Based on theUnited NationsDeclaration of theRights of theChild(1959)143 andsubsequent Convention on theRights of theChild(1989),144 theRussian Federation adopted itsown statute on therights of thechild. Theprovisionsofthe law aretoalarge extentdeclaratory anddonot envision specific regulatory mechanismsormeanstoensurecompliance. TheFederal Statute On theBasic Rights of theChild of 24 July 1998 (No. 124-FZ), containsonly oneprovision (Art. 14) dealingwith the problem underreview. It reads:

“State bodiesofthe Russian Federationshall takemeasures to protect thechildfromthe information, propaganda andagitation injurioustohis or herhealth, moraland spiritual development, includingprotection from ethnic,class,social intolerance, advertising of alcohol andtobacco products, from propaganda of social, racial, ethnic andreligiousinequality,aswell as dissemination of …audio- andvideo products, promotingviolence andcruelty,pornography, drug addiction, addiction to inhalants, anti-social behaviour.”145

It is thus no wonderthat thepressuretointroduce practical steps forprotectinginterestsofminors in themass media has only continued to increase.On24June2009, theState Duma passed in thefirst readingthe Bill On theProtection of Minorsagainst Information Detrimental to their Health and Development.146

140) See fordiscussion of theBill in: Protection of MinorsfromHarmful Information in theLaw of Post-Soviet States by Anna Belitskaya. Op. cit.P.6. 141) Protection of MinorsfromHarmful Information in theLaw of Post-Soviet States by Anna Belitskaya. Op. cit.P.2. 142) See: Petzold, Thomas.Gewalt in Internationalen Fernsehnachrichten: einecomparativeAnalyse medialer Gewalt- praesentation in Deutschland, Grossbritannien undRussland, VS Verlagfur Sozialwissenschafen, Wiesbaden2008. P. 44, 109. Quoted in: Dubina, Tatyana. An Economic Analysis of theRussian Television System, WorkingPapersofthe Institute forBroadcastingEconomics at theUniversity of Cologne. No. 259. Cologne, 2009. P. 100. 143) See http://www.cirp.org/library/ethics/UN-declaration 144) See http://www2.ohchr.org/english/law/crc.htm 145) Thetextofthe Statute is availableinRussian at: http://medialaw.ru/laws/russian_laws/txt/52.htm 146) Thetextofthe bill Озащите детей от информации, причиняющей вредихздоровью иразвитию (On the Protection of Minorsagainst Information Detrimental to their Health andDevelopment) after thefirst readingisavailable in Russian at: http://medialaw.ru/publications/zip/178/1.htm

Thefuturefederal statute shallregulate “productsofthe mass media, printed materials, movies, TV andvideo films, electronic andcomputergames,other audiovisual productsinany material form, includingthat disseminated in theinformation-telecommunication networksofgeneral access (includingthe Internet andmobiletelephony)” (Art. 2para. 8).

TheBill defines sevencategories of informationthat arebanned from dissemination to minors (personsofbelow 18 yearsofage). They range from pornographyto“propaganda of negation of family values”.Pornographic informationisdefined in thebill as “materialsand objectsofnoartistic value andnoscientific,medical or educational purpose that contain description or photographic,video or other portrayal ( inter alia created by meansofcomputer graphics,animation or other pictorial means) of:1)either genitalsofahuman,2)orintercourse or an imitationthereof,3)orother action comparabletosexual intercourse, inter alia with an animal or adeadhuman” (Art. 5para. 2no. 7).

TheBill protectsthe “information security of children” defined in Art. 2asthe “condition under which thereisnorisk of harmful impact on thephysical, psychological, social, spiritual andmoral health anddevelopmentofchildren”.

Thefollowingratings for“informationalproducts” relatingtothe age of their consumersshall be applied: universal (all ages), below 6(yearsold), 6+, 12+, 16+ and18+. Thebill envisionsthe introduction of amandatory specific labellingsystem forall audiovisual productsand services,including TV programmes (other than news, currentaffairs, entertainmentand livebroadcasts), in accordance with theage rating. Airingofproductslabelled 16+ shallbeallowedonTVonly from 9p.m. to 7a.m., andthose labelled 18+ only from 11 p.m. to 6a.m.

Thefuturestatute will obligefacilities,likeInternet cafes,that providecustomers with access to audiovisual contenttouse technical andprogrammingmeanstoprotect minorsfromaccessing detrimental information.

Producersand distributorsshall be responsiblefor markingtheir productsinaccordance with the guidelines of thenew statute.Inparticular,itencouragesthemtosolicit an expert opinion on theage ratingaswell as on thespecific rules andlegal consequences also foreseen in thebill. To seek expert opinionsfor computerand other games becomes mandatory. 147

Currently,anage-specific ratingsystem foraudio andvideo productsapplies (mostly featurefilms forexhibition)accordingtothe Ordinance of theFederal Agency on Cultureand Cinematography(now incorporated into theMinistryofCultureofthe Russian Federation) of 15 March 2005. TheOrdinance approvedGuidelines forAge-Specific Classification of Audiovisual Works.148

Underthe Ordinance filmsshouldberated accordingtofivecategories:

•Restricted to personsof18yearsofage andolder; •Restricted to personsof16yearsofage andolder; •Restricted to personsof14yearsofage andolder; •Restricted to personsof12yearsofage andolderwith parental guidance; •Filmssuggested forgeneral audiences.

So far, themonitoringofviolationsofthe rights of minorshas presented apractical problem. There mightbeachange with therecentestablishment of an Ombudsman on theRights of Children.149 Temporarily,his office will be at thePublic Chamber of theRussian Federation.

147)Russian Federation: Draft Law on theProtection of Minorsagainst Information Detrimental to their Health andDevelopment by Andrei Richter,IRIS2009-8: 18. 148) Thetextisavailable(in Russian) at: http://www.medialaw.ru/publications/zip/141/4.htm 149) Theposition wasestablished by theDecree of thePresidentofRussia No. 986 of 1September 2009 “On Ombudsman at the Presidentofthe Russian Federation on theRights of Children”.Published in Rossiyskaya gazeta official daily on 4September 2009.

Art. 6ofthe Cooperation Agreementofthe Member-States of theCommonwealth of Independent States (CIS) in theSphereofRegulation of Advertising Activity (2003) requires governments to protect minors from anyabuse of their credulity or lack of experience. 150 In Russia such protection is less strict than in thelaw of other CIScountries.The FederalStatute On Advertisingcontainsanarticle(Art. 6) concerningthe specifics of distributingadvertisingaddressed to minors. It stipulates:

“With theobject of protecting minorsagainst abuse of their credulity andlackofexperience, thefollowingshall notbeallowedinadvertising:

1) discreditingofthe authority of parents andeducatorsorunderminingminors’ trust in them; 2) direct inducementofminorstoconvince parents or other personstopurchasethe advertised goods; 3) creation amongminorsofadistorted notion of what is actually attainablewithin afamily budget; 4) effortstodrawthe attention of minorstothe suggestion that thepossessionofvariousgoods gives them anyadvantagesoverother minorsorthat theabsence of such goods has theopposite effect; 5) creation of an inferiority complex in minorswho arenot in possession of advertised goods; 6) portrayal of minorsinhazardous places or situations; 7) understatementofthe requisite levelofskill in theuse of thegoods advertised amongminors; theadvertisingmustgiveinformation on what is actually attainablefor minorsofthe age group forwhich thegoods areintended; 8) creation of an inferiority complex in minorsbypromotinginthemanegativeoutlook”. 151

Enforcementofthese advertisingnormsisnot ararecase.For example, on 25 December 2007, a regular meetingofthe Expert Council of Enforcementofthe AdvertisingLegislation at theFederal Antimonopoly Service discussed whether theslogan “Father Frost [an equivalenttoSanta Claus] does notexist!” used by the“Eto” storechain foradvertisingpurposesdiscreditsparents, day care providers andchildminders andundermines confidence in them in theeyesofminors. As aresult of the discussion, theexperts concludedthat themethod of conveying“breakingnews”, used in the advertisement, couldbeperceived ambiguously by children. Minorswereanaudience targeted by the advertisementbecause of theadvertisingschedule. In the“Eto” case,the Council noted violationsof Clauses 2, 4, 5, and8ofArt. 6ofthe FederalStatute On Advertising(see above). To prevent further violation of theadvertisinglegislation of theRussian Federation, theCouncil recommendedthat the advertiser andTVchannelsstopbroadcastingthe advertisementcontainingthe slogan.152

Expertsbelieve that so farlegal statutes in Russia do notprovideacomprehensivesystem of measures to restrict themass media withrespect to thedistribution anddissemination of information of asexual natureand imagesofviolence.Suchmeasures shouldbemainly preventive. However, comprehensivelegislation of this delicate sphere, which is called forbythe most activeproponents (defenders)ofmorality,ishardly appropriate as it wouldrepresentaveiled threat to individual liberties andthe freedom of thepress. 153

6. Rights of nationalminorities

In theRussian Federation, themain sources of law on theissue of languagesinbroadcastingare theConstitution andthe normsofinternationallaw andintergovernmental treaties.The Constitution, adopted on 12 December 1993,154 guarantees equality regardless of nationality(ethnicity) (Art. 19). Thelanguage-related provisionsofthe Constitution aredeveloped in federal andregional statutes.

150) Thetextisavailable(in Russian) at: http://www.medialaw.ru/exussrlaw/l/sng/38.htm 151) Thetextisavailable(in Russian) at: http://medialaw.ru/laws/russian_laws/txt/11.htm 152) FASPress release of 27 December 2007 “Expert Council of Enforcementofthe AdvertisingLegislation”,see http://www.fas.gov.ru/english/news/n_16790.shtml?print 153) Protection of MinorsfromHarmful Information in theLaw of Post-Soviet States by Anna Belitskaya. Op. cit. P. 8. 154) Available(in English) at: http://www.constitution.ru/en/10003000-01.htm

In Art. 69, theConstitution guarantees therights of indigenouspeoples with anumerically small population. To follow theConstitution, theStatute On theGuarantees of theRights of Numerically Small Indigenous Peoples of theRussian Federation of 1999 establishes aspecial regimeregardingsuch peoples (livingincommunities of fewerthan 50 000 people) andthe peoples of theFar North.155 The Statute confersupon them therighttotheir ownautonomoussocio-economic andcultural development andobliges thegovernmenttoprovideassistance by devisingprogrammes forprovidingsupport, allocatingfunds,etc. It guarantees therighttopreserveand to developnativelanguagesaswell as to receiveand disseminate information in nativelanguagesand to establish mass media.

At thesametime, no normativeact on regulation of broadcastingspecifies theconditionsof minority participation in establishingand managingbroadcasting, whether theminorities belongto small indigenouspeoples or not.

TheConstitution (Art. 26 section 2) confirmsthe rightofeveryonetouse his/her nativelanguage, andtohavethe free choice of language forcommunication. It further establishes that whileRussian is thestate language of theFederation, thenational republics havethe righttodeterminetheir state languages. These statelanguagesthereby become parallel official languagesofthe territories (Art. 68). In fact, whileRussian remainsthe dominantlanguage andalsothe language forcommunication between all ethnic groups in thecountry,other languagesare widely spoken andare actively promoted in the21national republicsofthe Federation, as well as in ten autonomousterritories andone autonomousprovince,and in other areas densely populated by ethnic groups.

Theuse of thestate language andother languagesinthe territory of Russia is more explicitly regulated by the1991 Statute On theLanguages of theRussianFederation. 156 Its Art. 20 dealswith language usebythe mass media. In particular,itstates that broadcastsofthe all-Russian TV andradio programmes areconducted in Russian as thestate language of theFederation.

Art. 5of theFederal Statute On theState Languageofthe Russian Federation of 1June2005, No. 53- FZ specifiesthat theruleprescribingRussian as thelanguage of thenational, regional andmunicipal mass media does notcovermedia outletsestablished specifically to broadcast in thestate languages of theconstituentrepublics of theRussian Federation, in other languagesofthe peoples of Russia or in foreign languages.157

In practice,the Rossia national TV channel provides forshort broadcastingwindows by regional state-owned stations, andwheneverpossiblethey broadcast in thenational languages. These regional stationsare part of theMoscow-based VGTRK company, thus givingrise to acertain degree of friction between thecentral authority andthe authorities of theprovinces.

Forexample, in October of 2003 theState CommitteeonMinorities andanumber of cultural minorities’ organisationsofthe Karelia Republic in theNorth-West of Russia formally complained to Rossia about thedisappearance of broadcastinginthe Karelian, Finnish, andVeps languagesinthe regional windows. Thebroadcastinginthese languageshad stopped because in early 2003 therehad been achange in theprogrammepolicyofthe state channel forthe territory –without consideration of theopinion of provincial authorities andnon-governmental organisations. Theprotest wasjoined by authorities from nineother national regions.158 In 2004, theprogramminginnational languages wasalsocut in theKabardino-Balkaria region in theNorth Caucasus.159 In theUlyanovskregion (on theVolga), broadcastinginnational languagesbythe regional branch of VGTRK ceased upon orders from Moscowin2006.160

155) No.82-FZ of 30 April 1999. See itstext(in Russian) at: http://base.garant.ru/180406.htm 156) No. 1807-1 of 25 October 1991 (as amended), availableinEnglish at: http://www.minelres.lv/NationalLegislation/Russia/Russia_Languages_English.htm 157) Its text is available(in Russian) at: http://medialaw.ru/laws/russian_laws/txt/46.htm 158) See thereport of 2February 2004 by theIzvestia newspaper,availableat: http://www.izvestia.ru/russia/article43779 159) See thereport of Regnum news agency at: http://www.regnum.ru/news/441186.html 160) See thereport of theCentrefor Journalism in ExtremeSituationsat: http://www.cjes.ru/bulletins/?lang=rus&bid=1978

In all cases,VGTRK conditioned thereturn of non-Russian languagesinto national broadcastingon theprovision of regional financingorco-financing. In someinstances (Chuvash Republic andMari-El Republic), this demandwas metbyprovincial authorities andcultural foundations.161 Severalrich national republics (Tartar,Ingush, etc.)evenestablished state-run broadcastersthat arenot subordinate to Moscow; their national language programmes claim alarge shareofthe local audience.

TheStatute On theMass Media envisagesthat thelanguage in which amass medium will be disseminated (printorbroadcast) shouldbeindicated duringthe registration process (Art. 10). However, thechoice of language(s) is made by thefounderofamass media outlet. Thelanguage indicationdoes notinfluence theoutcomeofthe registration process,though theStatute requires re- registration if thelanguage is changed(Art. 11). Themass media shall be re-registered accordingto thesameprocedures applied to theoriginal registration, which is alongerprocess than asimple notification procedure, such as,e.g., in thecase of achange in thelocation of theeditorial office.

Whilethere arenolegal obstacles to obtaininglicences forbroadcastinginalanguage other than Russian, theissue of thelanguage of broadcastsmay be considered duringacompetition foralicence awardasameansofsatisfyingsocially-significantinterests. On theother hand, to thebest of our knowledge,the licensingauthority has neveradopted special measures in ordertofacilitate access to television broadcastingfor personsbelongingtonational minorities (e.g., by announcingacompetition forminority language TV broadcastingwith areduced licence fee).162

Oneofthe recentcountry-specific Resolutionsadopted by theCommittee of Ministers(CM) of the Council of Europe in thecontext of theSecondMonitoringCycle of theFramework Convention forthe Protection of National Minorities (FCNM) concerned theRussian Federation. It containsanumber of provisionsregardingthe (audiovisual) media. TheCMrecommends thatthe Russian authorities “further improve access to themedia of personsbelongingtonational minorities” and–moregenerally – increase awareness-raisingmeasures concerning“thedangers of hate speech andthe importanceof toleranceand respect fordiversity”. 163

7. Restrictions to counterextremism

Themajor instrumentfor regulatingpolitical speech in broadcasting andother mass media in Russia is the Federal Statute On CounteringExtremist Activity of 25 July 2002 (No. 114-FZ). 164 Its central purpose as regards themedia wastoban them from engaginginextremism or beingused to spread extremist material. Thepenalties fordefyingthe ban culminateinthe closureofthe media outlet. Henceforth, thekey issue forbroadcasterswouldbeinwhat circumstances their actionscouldbe deemed extremist.

Originally,the Statute defined extremism by listingactsalready classifiedasoffences underthe Russian Criminal Code. But it addednew attributes, mostly by linkingthemtoviolence or callsto violence.Aspart of extremism, theStatute included“planning, organising,preparingand committing acts directed at theviolent…breachofthe Russian Federation’sterritorial integrity; seizureor usurpation of power; creation of illegal armed formations; perpetration of terrorist activities” andsoon.

Thelist wassignificantly expandedbyamendments passed in July 2006. Accordingtoanalysts, the main idea behindthe changeswas to shieldthe authorities from thediscontentofits ownpeople.165 Extremism now includedspreadingmaterial that explained or justified extremism,disseminating

161) See thereportsat: http://gov.cap.ru/list4/publication/rec.aspx?gov_id=82&pos=2&id=119051 and http://www.rg.ru/2005/08/16/markelov.html 162) Regulation of Minority-Language BroadcastingbyTarlach McGonagleand Andrei Richter,IRIS plus, asupplementtoIRIS, Legal Observationsofthe European Audiovisual Observatory, Issue 2004-2, availableat http://www.obs.coe.int/oea_publ/iris/iris_plus/iplus2_2004.pdf.en 163) Resolution ResCMN(2007)7 on theimplementation of theFramework Convention forthe Protection of National Minorities by theRussian Federation, 2May 2007. See: Committee of Ministers: Media-specific ProvisionsinNew Resolutionson Minorities by Tarlach McGonagle. IRIS2007-8: Extra, availableat: http://merlin.obs.coe.int/iris/2007/8/article104.en.html 164) See itsoriginal, notupdated, text (in English) at: http://medialaw.ru/e_pages/laws/russian/extrimist.htm 165) Нагорных И. Подрыв веры вгосударство -это иесть экстремизм // Коммерсантъ-Власть, 24 июля 2006 г.

public callstoengage in it andalsopromotingorfacilitatingitthrough themedia. Publicly defaming state officialsbymaliciously accusingthemofcommitting acts of an extremist naturealsobecamean actofextremism.

On 24 July 2007, theFederal Statute On CounteringExtremist Activity wasfurther amended. In contrast to thepreviouswording, thenew wordingofits Art. 13 (which prohibitsthe production and disseminationofextremist materials) no longerprovides anydefinite criteria forthe recognition of materialsasextremist, although it establishes that materialsare extremist once acourt decision on it entersinto force. Therevised Arts. 9and 10 contain provisionsonthe federal list of extremist organisations. Thedecision to add an organisation to this list will be taken by thestate agency in charge of theregistration of non-commercial organisationsand mustbebased on acourt decision.

As regards penalties forthe media, extremist acts or dissemination of extremist content(as well as acts of disseminatingcallstocommit acts of terrorism or justifyingthem) result underthis Statute andthe amended(2002) Art. 4ofthe Statute On theMass Media in awarningbyRoskomnadzor or oneofits regional bodies.Insomecases of threatstopublic security,eventhe first warningmay lead to thesuspensionofdisseminatingthe media andcouldbeastep in theprocedurefor closure. The StatuteOnCounteringExtremist Activity andamendments to theStatute On theMass Media allow also thepublic prosecution to usethe procedureofwarnings andclosureifintheir viewthe media areused forextremist purposes.Inparticular,aprovision points to information on theactivity of organisations, whose functionsare forbiddenbyafinal court decision andwhich areincludedinthe FederalRegister of Extremist Organisations. Themedia may notdisseminate information on them without makingthe appropriate reference to such adecision.

We consider that theStatute’s most dangerous consequence forfreedom of massinformation is that notonly canreportersand editorsbepenalised forspreadingextremistmaterial (includingdefamation of state officials),166 but also editorial offices andbroadcastingcompanies can facesanctionsincluding closure.

Thedefinitionsofextremism andterrorism in thelaw aresobroad andvague that they couldbe used to stifledebate in themedia with regardtoissues that areofincreasingpublic interest. The authorities usethe extremism law to suppress theviews of radical political opponents andthe state rarely seeksabalance between theneeds to eradicate terrorism andrespect journalists’ rights. By and large,itfavoursthe easier path of curbingthe flow of information andthe circulation of opinions.167

In most appealsagainst warnings issued fordissemination of extremist materials thecourtstake thesideofthe prosecutorsand/or Roskomnadzor.Still, thereisararecase when awarningtothe media outlet wassuccessfully overruled in court,although thecase itself seemsnot to concern political speech but rather acommercial dispute overafrequency.The 2x2 television channel, ownedbythe Russian private holdingcompanyProfMedia, is constantly attacked by fringe public organisationsand individuals forofferingcartoonsfor adultsduringdaytime. Beyond accusationsofspreadingthe cult of violence andcruelty,aswell as pornography(see above), thepetitionsofthese criticsallegethe crimeofextremism in thereligiousstrife that thecompanypurposely spreads.Inturn, thecompany states that this array of attacksismotivated by thepurely commercial intereststhat itsopponents haveinthe channel’sprecious frequency servingthe peopleinSt. Petersburg.

The2x2 channel broadcastsvia cablenetworksthroughout Russia andinSt. Petersburgoverthe air,a24hr programmeofcartoonsfor adults. Acting on private complaints, adistrictprosecutor’s office orderedand obtained an expert opinion that claimed in particular that an episodetitled “Mr.Hankey’s Christmas Classics” from the“South Park” cartoon series (produced in theU.S. by Comedy Central) was

166) Forexamplethe Codeofthe Russian Federation On AdministrativeOffences of 30 December 2001 (No. 195-FZ) now has an Art. 20.29 which referstoliability forthe production anddissemination of extremist materials. It provides forseriousfines forpersonsand organisationsfoundguilty of this offence.Also, theCriminal Codeofthe Russian Federation of 13 July 1996 (No. 63-FZ) andthe Criminal ProcedureCodeofthe Russian Federation of 18 December 2001 (No. 174-FZ) provide liability forcrimes committed with extremist andxenophobic motives.See: Russian Federation: Anti-extremism Amendments, by Nadezhda Deeva,IRIS2007-9: 19. 167) See more on that issue in Richter,A. Post-Soviet PerspectiveonCensorship andFreedom of theMedia. – Moscow: UNESCO, 2007.

extremist in thesense of the2002 FederalStatute On Counteraction of Extremist Activity because it promoted hatred between religions. That served as thebasis of awarningissued in accordance with this statute.

In addition, aseparate criminal investigationonsuspicion of excitementofreligiousstrife was opened in theBasmannycourt by thesameprosecutor in September of 2008. In afurther motion, the prosecutorsasked thecourt to declarethe series extremist material that wouldinvolvecriminal prosecution of those whodisseminated it. After twonew expert opinionshad been provided that denied existence of extremist materialsinthe cartoon series,the investigation wasclosed andthe court motion waswithdrawn by theprosecutor’soffice.However, that did notprevent theprosecutors from defendingthe legality of their warninginthe court. Based on theexpert opinions, theBasmanny District Court in Moscowon2June2009 adopted an important judgement on acase of abroadcaster against theprosecutor’soffice.Itoverruled the22August 2008warning issuedbythe Basmanny Inter- District Prosecutor to the2x2 television channel andannulled thewarning. TheDistrict Court decision wasappealed by theprosecutor’soffice in theMoscowCity Court. TheCity Court upheldthe lower court’sdecision on 28 August 2009.168

III. Regulatorymeans

1. Self-regulation andco-regulation a. Self-regulation mechanisms: charters and codes

Adoption of codes of ethics andself-regulation systemsinRussia has resulted in thepast –and still does today –fromthe threat of legal restrictionsonthe media. This is notinitself reprehensible, or unique to theregion. But this carrot andstick approach causes thefollowingdangertoreal self- regulation: if media professionalsadopt acodeofethics only to pre-empt an imminentthreat of new legislativecurbs,they lose their interest in thenew codeassoon as that threat disappears.

Forexample, theRussian journalistic community’sdraftingofa“counterterrorism convention” was directlylinked to theState Duma’sproposed (in November 2002) amendments to theterrorism and media statutes that wouldhaveregulated media coverage of so-called counterterrorism operations. If adopted, theamendments wouldhavebanned themedia from reportinganythingthat mightobstruct such an operation or endangerhuman lifeorhealth. They wouldalsohaveoutlawed reportscontaining remarksintendedtoobstruct acounterterrorism operation or to encourage or justify opposition to it. They wouldhaveforbiddeninformationrevealingpersonaldetailsofmembersofthe security forces or operational Head Quartersorofanyonehelpingthem, without these persons’ consent. Theamendments also contained an implied ban on reportsabout how weapons, ammunition or explosives aremade.

Faced with these potential andother similar restrictions, theeditorsofinfluential Moscowmedia outletssigned an appeal urgingthenPresidentVladimir Putin to veto theamendments. Afew days later,they went to meet him andwereasked to findabalance between restrictionsduringemergencies andthe need to keep thepublic fully informed. “Itseemstomethat thejournalistic community needs to draw up corporate standards of behaviour forextremesituations,”Putin told them. Oneofthe editorspresentwas Konstantin Ernst, generaldirector of theChannel OneTVCompany, whoreplied that journalistsand media executives were already “willingtowork with thelegislators to draw up such rules”. 169 That very day,the amendments were vetoed.

Thepromised codeofconduct –the Counterterrorism Convention (Rules forMedia Conduct in Event of Acts of Terrorism or Counterterrorism Operations)” –was drafted andsigned on 8April 2003. It places anumber of restrictions on journalists 170 andstates in particular that they shouldnot:

168) See Russian Federation: Warningtobroadcaster annulled, by Andrei Richter,IRIS2009-8: 18. 169) Путин предлагаетжурналистскомусообществу выработатькорпоративные нормы поведения в экстремальныхситуациях // Сообщение агентства Интерфакс. 25 ноября 2003 г. 170) See itstranslation into English at: http://www.medialaw.ru/selfreg/3/14.htm

•initiate interviews with terroristsduringanact of terrorism, unless requested or permitted to do so by the“operation’sHeadQuarter”171; •provideterroristswith liveairtimewithout prior consultation with theoperation’sHeadQuarter; •independently assumearoleasmediator,and so forth.

As soon as theCounterterrorism Convention wasadopted, it wasquickly forgotten by both the media andthe authorities.Despite theduty to “be tactful andattentivetothe feelings of relatives andlovedonesofvictimsofterrorism”and “toavoid excessiverealism when showingthe site of an incidentand those involved”, theattacksonthe Hotel National andMoscowmetroinlate 2003 and early 2004 were reportedingruesomedetail. Thecodeofethics remained a“paper tiger”.Its purpose wasnot to rein in theprofessional community but to pacify officialdom, at least forthe timebeing.

Theineffectiveness of thecodeofethics helped to revivethe idea of legislation. Almost all the measures that thelaw-makershad originally wanted were incorporated into anew terrorism statute signed on 6March 2006. 172

This story waslargely repeated when theCharter “Against violence andcruelty” wasadopted. The chiefsofthe country’sbiggest television networkssigned it at theState Duma on 8June2005, with theleaders of theparliamentary factionslookingon. Nobody doubted that this new codeofethics was adirectresult of theDuma’sdebates in late 2004 andearly 2005, when theparliamentariansconsidered anumber of amendments to themedia statute in ordertocurb violence andcruelty on television. The press dubbed it a“charter forsubservience” andsuspected that it hadbeen signed “for reasonsfar removedfromthe well-beingofthe viewer”. 173

Underthe Charter thenational broadcast networks“voluntarily” assumed duties that hadmostly to do with observing“therights of children to protection andassistance and, above all, their rightto receiveinformationthat does notharm their physical andmoral health”,especially duringthe showing of violence andcruelty.

Thesigningceremonywas widely coveredbythe press.Overthe timethat has passed since then, however, notone of theTVcompanies that signed theCharter (Channel One, Rossia, NTV,TV-Tsentr andRen-TV) has evenposted it on their websites.Nor did thetextappear in anynewspaper.Unsurp- risingly,the Charter “Against Violence andCruelty”has also hadnothingmorethan an ephemeral effect –somethingthat MPs havethemselves pointed out.174

In this context, we shouldalsomention theso-called Broadcasters’ Charter of April 1999,inwhich thetop executives of Russia’slargest national andregional television companies undertook to provide truthful information, upholdthe rights andlegitimate interestsofindividualsand organisationsand protect public health andmorality.They also defined behavioursthat were incompatible with civilised journalism. Thereason behindthe adoption of this documentisbelievedtobethe enactment, on the day before, of theStatute “On theSupremeCouncil forProtection of Morality on Television andRadio in theRussian Federation” (see above). TheTVchiefswho signed theCharter decided to set up their ownpublic broadcastingcouncil to oversee compliance.But thestatute gotapresidential veto,and thealternativecouncil wasnevercreated.“Theposition taken by theleaders of theRussian television channelsclearly shows that they saw thedocumentthat they hadsigned as aforced agreementwith society on therules of thegame. But when thedangerofregulation through thelaw passed, theTV companies lost interest in thevery idea of aCharter.Tothemitrepresented merely aframework for limitingfreedom of self-expression, amoral compass that journalistsdid notneed.”175

171) “Operation’sHeadQuarter” referstothe ad hocHeadQuarter of anti-terrorist squads andforces of differentsecurity agencies broughttothe scene. 172) FederalStatute No. 35-FZ of 6March 2006 On Counteraction of Terrorism. ThetextisavailableinEnglish at: http://medialaw.ru/e_pages/laws/russian/terrorism.htm 173) Новые Известия,8июня 2005 г. 174) See,e.g., Го сдума приняла обращение круководителям телеканалов /РИА Новости —2ноября 2005 г. Фаризова С.,Бородина А. Людоеды не показались депутатам. НТВ обвинили внарушении хартии телевещателей//Коммерсантъ, 1ноября 2005 г. 175) See: Авраамов Д.С. Профессиональная этика журналиста(Сущность,основные функции, становление в России): Дис. вформе научногодоклада …докт.философ. наук. —М., 2000. С.42-43.

This assessmentbythe Russianresearcherofjournalistic ethics,Dmitry Avraamov,iscorrect, except forthe factthat theagreementwas notreached with society but theauthorities.Inother words, in thedesperate dayswhenaclampdownisinthe cards,proprietorsand managers play along with theauthorities andtry to persuade them to drop their plans. Andthe gameisoften opened by thestate leaders themselves,who do notwish to be later seen by thepublicaspersecutorsofthe media. They prefer to blamejournalistsfor thenewerand tougher rules of thegame. All these and similar documents deservethe definitionapplied to oneofthembyVladimir Bakshtanovsky,a researcher of applied ethics.Hedescribed them as “theact of tokenisinganalready tokenform of the press’ssocial responsibility”. 176 b. Self-regulation and co-regulation bodies

Theself- or co-regulatory mechanismsthat apply (at least in theory though less often in practice) haveanother prominentfeature: self-regulation bodies aresometimes set up with state involvement andunderalegislativeinstrumentdesigned to ensure(to whateverextent) that their rulings are adheredto. An interestingexampleofthis approach wasthe Judicial Chamber forInformation Disputes, which wasset up by thePresidential Decree of 31 December 1993. Its remit wastoruleonany dispute concerningthe media, givingpriority to those thatcouldaffect notonly individual outletsbut freedom of mass information in general.

Thechamber wasonly called “judicial” because of theway in which it handled disputes; it wasnot apart of theRussian court system. But underthe Presidential Decree itsrulings were bindingonstate authorities andalsostate media. Thechamber hadthe righttopublishits most importantrulings in thegovernmentnewspaper Rossiyskaya gazeta,tofacilitate their implementation.

Thechamber comprisedformer state officials andmembersofthe parliament, journalistsand also higher-education lecturers andevencollegestudents ( sic!)ofmedia law.Duringits life it heardseveral hundreddisputes andbased itsrulings notonly on thelaw but also on ethical standards.Its members often emphasisedthat they were notpart of PresidentBoris Yeltsin’sadministrativemachinery but that theJudicial Chamber waspart of the institution of thepresidency.Any interference by Yeltsin,ifit occurred, wasinsignificant. This is borneout by verdictsthat condemned state officialsormedia loyal to theauthorities.Manyofthe chamber’srulings protected journalistsagainst unlawful interference by state officials. Thesituation changedwhenVladimir Putin waselected as president: thepresidency’s administrativestructurewas revamped in summer 2000 andthe Judicial Chamber wasscrapped.

Thebodies created thereafter with theuse of resources of theRussian Union of Journalists(RUJ) failed to be in anyway close to theChamber in authority,effectiveness or scope.Justafew conflicts areadjudicated by them each year.ArecentRussian governmental report on themass media made a special pointonthe importance of self-regulation measures andinparticular highlighted abody called the Public BoardonComplaints against thePress (Public Board),177 set up by theRUJ, but at thesame timenoted its“still largely untapped potential”. 178

ThePublic Boardpositionsitself as an “alternativebody” to thecourtsofjustice.Anybody filinga complaintwith thePublic Boardhas to sign an agreementrecognising itsjurisdictionoverprofessional andethical mattersand declaringnot to takethe case to acourt of justice.Inthe strict legal sense, awaiver of access to thecourtsofjustice is notvalid, but then thePublic Boardspeaksthe language of ethics andnot thelanguage of law.Ifthe petitioner decides nevertheless to go to court he/she challengespublic morality andthe respondent’s representativewill be quick to takeadvantage of this in ordertoargue that theplaintiff has abused thelaw.

176) Бакштановский В. И. Бремя исчастье моральной ответственностижурналиста//Социальная ответственность журналиста: опыт современногопрочтения проблемы /В2-х чч. Ч. 1. /Под ред. Ю. В. Казакова. —М., 2003. с. 91-118. 177) See itswebpage at: http://www.presscouncil.ru/ 178) See,Russian Periodical Press Market: 2008. Situation, Trendsand Prospects. Areport by theRussian FederalAgency forthe Press andMass Communications, Moscow, March 2008.

Therehavebeen attemptstoshedthe obligationsassumed. Forexample, Andrei Karaulov,the popular author andpresenter of “TheMomentofTruth” TV programme, unhappyabout how theBoard ruled onhis complaintagainstthe newspaper Moskovsky Komsomolets, asked permission to go to court. But theBoarddemandedthat all theparties in theconflictcomply with itsruling. It explained that compliance with theobligation nottobringthe conflict to acourt of law is assured “not only by the decency of thepeoplewho havewillingly assumed these obligations, but also by theemergingpublic consensusthat moralobligationscannot be broken.”179 In another recentdecision,180 theBoardaccused theTVchannelRossia of theVGTRK of disseminatinghate speech andquestioned itsadherence to basic principles of journalism ethics. c. Public controlthrough boards at state-run channels

As early as 1993, thetimeofanacute politicalcrisis,the Presidentand theSupremeSoviet (Parliament), were competingfor therighttobethe voice of thenation. Each state organ passed a separate legal actprovidingfor theestablishment of supervisory boards at thestate channels.

The Presidential Decree of 20 March 1993 On Guaranties of theInformational Stabilityand Broad- casting Requirements 181 envisagedthe transformation of thebroadcastingsystem. It aimed at generatingcompetition between state,public service andprivate television andradio. It also prescribed governmental authorities to establish guardian councils in ordertoresolveconflicts concerning themisrepresentation of political parties,attemptstointroduce censorshiporother unlawful formsofcontrol. TheDecree,still in force, wasignored by all governmental bodies, as well as by thestate broadcasters.

On 29 March 1993, theCongress of People’sDeputies of theRussian Federation (Parliamentary Assembly) adopted the Resolution On Measures to Support Free Speech in State Broadcasting andin Information Services . 182 This Actintroduced therightfor legislatures (both federal andregional) to establish supervisoryboards at thestate broadcastingchannels. Thegoalsofthese boards were to guarantee objectiveinformation by state broadcastersonpoliticaland economic events, to provide access forvariouspolitical organisationstobroadcasters’ programmes,and to counteractpolitical monopolisation of theairwaves.The Resolution did notspecifythe powers of theboards.For that reason itscompliance with theConstitution waschallengedinthe Constitutional Court. Complainants argued that theAct introduced censorship. TheConstitutionalCourt in itsDecision of 27 May 1993 ruled that theenactmentofthe Resolution hadbeen procedurally incorrect andtherefore annulled it.183 It is importanttonote that thepossibility per se to establish supervisory boards wasnot rejected by theConstitutional Court.

Thestory continued when by the Decree of thePresidentofthe Russian Federation of 31 October 1997 asupervisory boardatthe national state-run channel “Kultura” wasestablished together with the channel.184 TheBoardwas given wide-reachingcompetences,includingthe righttoform thepro- grammepolicyand control other activities of “Kultura”.The Boardincludedexpertsinthe sphereof cultureand media appointed by thePresident, andwas chaired by thePresident in person.However, after oneortwo meetings theBoardceased itsactivity.

The 1998 Charter of theRussianState Television andRadio Company (VGTRK) envisagedapublic council at theoffice of itsChairman, whose membersshouldhavebeen selected from among “outstandingpersonalities of science,cultureand arts” andapprovedbyOrdinance of thegovernment. Thebody wastobeestablished in ordertoguarantee public control overstate broadcast media. The Charter provided that thecouncil members be selected by theChairman alone. Thereisnopublic record of meetings of thecouncil.

179) See Russian Periodical Press Market: 2008. Situation, Trendsand Prospects. Op. cit. 180) See: http://www.presscouncil.ru/index.php?option=com_content&task=view&id=202&Itemid=31&limit=1&limitstart=5 181) AvailableinRussian at: http://pawa.ruj.ru/pravcenter/ukaz1.html 182) AvailableinRussian at: http://www.businesspravo.ru/Docum/DocumShow_DocumID_55709.html 183) Judgment of theConstitutional Court of theRussian Federation of 27 May 1993 N11-P “ По делу опроверке конституционностипостановления Съезда народных депутатов Российской Федерации от 29 марта1993 года “О мерах по обеспечению свободы слова на государственном телерадиовещании ивслужбах информации” (On thecase of constitutionality of thedecree of theCongress of People’sDeputies of theRussian Federation of 29 March 1993 “On Measures to Support Free Speech in State Broadcastingand in Information Services”). 184) AvailableinRussian at: http://www.businesspravo.ru/Docum/DocumShow_DocumID_53842.html

By 2000, thewhole idea of state-run television hadbeen revised. Thegovernmentaswell as parliamentnolongerconsidered new attemptstointroduce public control overstate broadcasting. In 2004,the governmentapproved thenew Charter of theVGTRK.Now it containsnomention of guarantees of editorial and/or financial independenceofthe state broadcaster. 185 TheCompanyhas the statusofaregular federal unitary enterprise.Its assetsare considered state property.The Chairman of theVGTRK is appointed by thePresidentofRussia andisthe only authority to manage thestate broadcaster.The Charter recognises therightofthe Chairman to set up consultativebodies,although no useofthis righthas everbeen publicly recorded.

In atwist of thetrend,the Charter of theState Unitary Enterprise“Russian Television andRadio Network” (RTRS) of 2001 provides foraSupervisory Board. But theBoardisset up as agovernmental watchdog andnot as abody of public representation. TheBoard, about which no records exist as yet, shouldconsist of representativesofthe Cabinet, severalgovernmental ministries,and theAdministra- tion of thePresidentofthe Russian Federation.186 d. Obstacles to self-regulation

Closely connected to theroleofboards at state-runchannelsisanother featureofself-regulation of journalistsinRussia, namely that generally speaking, shop-floor journalistshavenoinput in the adoption andelaboration of codes of ethics.This has mainly been aprocess initiatedfromabove and driven by theauthorities andmedia proprietorsand managers. Rarely does it bubbleupfrombelow, upon theinitiativeofjournaliststhemselves,trade unionsoreditors. In fact, thetrade union of journalistsinRussia, established in 1998, has only about 60 ( sic!)payingmembers.187 Therank and fileofthe profession sees theintroduction of codes of ethics merely as amove to curb their freedoms insteadofameansoffurnishingthe needed system of moralvalues.This attitude andthe nearly complete absence of codes independently adopted by journalists, testifies to how broadthe views on themission of journalism areevenamong thestaff of asinglemedia outlet.

Thereisareason whyethical chartersand conventionsare generally drawn up, adopted andsigned by media proprietorsand executives rather than by journalists. Thetop peopleare de facto supplanting professional with corporate solidarity andethics,and they ask their employees to reconcilethese professional andcorporate intereststoanoften highly conditional form of “in-house censorship” in ordertoavert pressurefromthe state.All of this together may be seen as aprocess of “compulsory self-regulation” in journalism, theelement of compulsion beingthe threat of legislation to restrict media content.

Directly or through media proprietorsand executives,the state authorities clearly wish to keep an eye on professional issues andself-regulation in thejournalistic community andnot to letthemtake their owncourse.Realisingthat they aredealingwith an area that has itsown specific features,the state authorities arenot vestingjudicial powers in self-regulatory bodies or theforce of law in codes of ethics.Only when industry measures proveineffectiveand thecodes areignored, thestate authorities begin theprocess of “compulsory self-regulation” all overagain. As aresult of this official policy, theself-regulation bodies either becometotally discredited or arewoundupifthe authorities do notlikebeingtoldwhat to do as happened to theJudicial Chamber forInformation Disputes (see above III.1.b).

In 2008, quite unexpectedly,the speaker of theupperchamberofthe FederalAssembly (the parliament), SergeiMironov,introduced abill “On thePublic Council of theRussian Federation for Television”.The draft wasenthusiastically discussed in theparliamentary hearings andtreated by the governmentasapriority,but then was, just as suddenly,put on hold. 188

185) Thetextofthe Charter (approvedbythe Resolution of theGovernmentofthe Russian Federation of 16 February 2004, No. 111) is availableinRussian at: http://www.inforeg.ru/db/components/doc.html-goto=-L2RiL2JpYmxpb3Rla2EvMTIvMjQ=%5E&card_id=1452.htm 186) AvailableinRussian at: http://dostup.scli.ru/ru/search_advanced/printable.php?act4=1&docID4=4162e26c-f119-4284-aea5-9d787217544a 187) Медиаэксперт.Российско-белорусскийправовой бюллетень,№1, 2004. С. 17. 188) See,e.g.: http://www.minkomsvjaz.ru/.cmsc/upload/docs/200905/18073415we.pdf

Today thereare severalobstacles to self-regulation. Themain oneisthe self-destructivenatureof theexistingmarket formass information. In Russia tensofthousands of printed publicationsand broadcast programmes exist mainly because of thelackofafreemarket. Omnipresentstate media enjoy public money andofficial favoursinthe gatheringand dissemination of information, which aredenied to private media.

In turn, private corporationsoften do notsee thepotential of media as successfulcommercial undertakings in their ownrightbut viewthemrather as in-house PR departments to promote the business interestsoftheir masters andfavoured politicians, andtosettlescores with rivals. The situation is such that manymedia outletsdonot dependontheir ratings andsales or audience loyalty; more importantfor them areongoingcash injectionsfromproprietorsand theability to influence their perceived key readers (viewers, listeners). In this environment, ethical conduct can be detrimental and evendangerous forajournalist.189

Another barrier to atype of journalism that couldnaturally regulate itself is thepoorly-developed collectivesense of identity of journalistsand media workersand their lack of professional spirit and professionalism. Membership of the“old” journalistic unionslikeRUJ is meltingaway, manydonot pay their dues.For the“written-off” generation of Soviet journalists, membership in these unions brings no longerany social safeguards or benefits. In anumber of cases,local union branches are fronted by theheads of themedia andpress departments of regional governments, state broadcasters or newspapers. Thereforethey areunlikely to provideprotection against officialdom. At thesametime, thedebates on media freedom that takeplace within journalistic unionselicit no response from the media elite or authorities. Theunions’ public role andcivic voice is littlenoticed. Andthis is compoundedbythe factthat thenew generationsofjournalistsregardthese andother associations as remnants of thetoken bodies that were discardedwhenthe Soviet system collapsed. 190

Another sign of this underdeveloped sense of professionalism is themedia’sintoleranceofcriticism andpressurefromnot only thestate but also from readers (viewers, listeners), public organisations andacademics.Unwillingness to accept criticalrulings by self- or co-regulatorsshows that managers poorly understandtheir responsibility to society. Andwhenthese rulings aresoblatantly flouted, their relevanceand authority can only declinefurther.

Finally,itdeserves to be mentioned that society seemstolackaconcept of what journalism is and what thepress shoulddo. What arethe journalistic profession’spurposes andtermsofreference? Do journaliststhemselves accept theidealsofacivic society as aguideintheir work, or arethey trying to replace acivic society with a“fourth estate”? Shouldjournalistsservetoinform, educate,enlighten andentertain society,orshouldthey engage as aprofession in themoulding(or manipulation) of public opinion, or seek maximum profit from their work? Shouldjournalism operate in such away that society imbibes itsvalues from andshares them with themedia?

2. Regulation by the nationalregulatoryauthority:the case of advertising a. Regulationofcommercial speech

AccordingtoArt. 4ofthe FederalStatute On Advertising, 191 theadvertisinglegislation of the Russian Federation wouldconsist exclusively of thefederal statute.However, thelegal relations concerningproduction,placementand distribution of advertisements can also be governed by other federal statutes or by regulatory acts of thePresidentand theGovernmentofthe Russian Federation that arepassed in accordance with theFederal Statute On Advertising.

189) Thereare testimonies that media owners consider journalism ethics as somethingthat hamperstheir business.See: Вначале было слово. Свободное // Те лефорум (Москва). 2005,№2. С. 18. See also: Media Sustainability Index 2004. TheDevelopmentofSustainableIndependent Media in Europe andEurasia. –Washington, 2005. P. 228. 190) See,e.g., Media Sustainability Index 2004. TheDevelopmentofSustainableIndependent Media in Europe andEurasia. – Washington, 2005. Р .147. 191) Of 13 March 2006, No. 38-FZ; prior to itsentry into forceadvertisinginthe Russian Federation wasregulated by theFederal Statute “On Advertising” adopted in 1995.

In accordance withthe RegulationOnthe Federal Antimonopoly Service of theRussian Federation, approvedbythe Resolution of theGovernmentofthe Russian Federation (No.331of30June2004), the Federal Antimonopoly Service (FAS) is theauthorized federal executiveauthority in this field. It is responsible, in particular, forsupervisingand controllingadherence to thelegislation on advertising.192 It reportstothe Governmentofthe Russian Federation andoperates directly andthrough itsregional offices.

Withinthe limits of itsauthority,the antimonopoly body prevents, identifies andterminates violationsofthe advertisinglegislation of theRussian Federation by physical or legal persons.193 The antimonopoly authority mayinvestigatefacts indicatingviolationsofthe advertisinglegislation of the Russian Federation on itsown initiativeoract upon complaints submitted by citizens, legal entities or other governmentagencies. 194

In compliance with theFederal Statute On Advertising, theGovernmentofthe Russian Federation passed the Resolution On Approvingthe Rules of Legal Investigation by theAntimonopoly Serviceofthe Cases Initiated forBreachingthe Advertising Legislation of theRussian Federation. 195 It effectively established theprocedures forconsideringcomplaints about violationsofthe advertisinglegislation andprocedures forhow to conduct related legal investigations.

If aviolationofadvertisinglaw is revealed, theFAS or competentregional antimonopoly authority (which is part of thefederal system) mustinitiate acase forbreachofthe advertisinglegislation. The case will then be considered by aCommission comprisingofficersofthe respectiveantimonopoly authority andchaired by theHeadorDeputy Head of theFAS or itsregional office.

TheCommission may findthe advertisement improper andinbreachofcertain statutory provisions, andissue theordertostopviolatingthe antimonopoly legislation with thedisputed activity. The addressee of theordermusteliminate theviolationsinthe advertisementwithin theperiod fixed in theorder. Failuretofollow theorderleads to administrativecharges–afinefromRUB 200 000 to 500 000.

In additiontoanorderaimed at stoppingthe violation, theCommission can initiate an administrativeviolation case forimproperadvertisements if it considersthis justified by thefacts of thecase in question. Administrativecases areconsidered by an antimonopoly officer (theHeador Deputy Head of an antimonopoly authority) single-handedly.Based on thecircumstances,(s)he decides on imposing afinefor violatingthe advertisinglegislation.The sum of thefineisdetermined in accordance with theCodeofAdministrativeViolations of theRussian Federation andcan range between RUB 40 000 and500 000 .

TheCommission can also filealawsuit seekingabindingcourt orderbywhich theperson who violated theadvertisinglegislation wouldbeobliged to retractthe advertisementinquestion (the retraction is called acounter advertisement). b. Monitoring and control of compliance with advertising rules

When investigatingalleged breaches of theFederal Statute On Advertising, theantimonopoly authorities often need to obtain variousexpert opinionsorresearch findings supportingorcontesting theadvertisingstatements. Such research can be undertaken by thecomplainants whobroughtthe violation beforethe FASbut also by theadvertiserswho wish to confirm thewell-foundednatureof thestatements used in their advertisements. In addition, theantimonopoly authorities can independently commission research or expert examination by aspecialised organisation.

192) Prior to April 2004, these functionsbelongedtothe Ministry of theRussian Federation forAntimonopoly Policyand Support to Entrepreneurship abolished in theprocess of restructuringthe government. 193) TheResolution of theGovernmentofthe Russian Federation of 7April 2004, No. 189 “Issues of theFederal Antimonopoly Service” of 9April 2004, No. 553. Thecomplete text is availableinEnglish at: http://www.fas.gov.ru/english/legislation/5920.shtml?print 194) FASRussia’sactivity on enforcementofthe advertisinglegislation (October 2007), Official report availableonthe website of FASat: http://www.fas.gov.ru/english/legislation/15838.shtml?print 195) Of 17 August 2006, No. 508. ThetextisavailableinRussian at: http://www.fas.gov.ru/adcontrol/8187.shtml

When dealingwith cases of advertisements that requireanunderstandingofhow consumers perceiveanadvertisement, sociological surveys (public opinion polls) can be organised. Forinstance, theremay be aneed to analyse advertisements that usetrademarksofgoods which areforbiddenfor advertising, or limitsmay exist foradvertisingtrademarked goods at aparticular timeorinaparticular place.Aneed forpublic opinion pollsmay also arise when underthe guise of advertisingdrinking water,sweetsorentertainment, theadvertiserspromote alcoholic beverageswith thesametitle, which is forbidden. Here advertisersoften claim that they do notadvertise forbiddengoods,but display the advertisements of other goods, forwhich advertisingisnot prohibited. In such circumstances, sociological surveys help defineconsumers’ perception of theadvertisementwith more certainty and specifythe object which is actually advertised.

Another waytolearn how advertisements areperceived by consumersistodiscuss them at a meetingofthe Expert Councils, formed by theantimonopoly authorities.SuchCouncilsare advisory andconsultativebodies called together as andwhennecessary by theFAS andits regional offices.They arecomprised of representativesofthe antimonopoly authorities andexpertsinvariousfields such as psychology,linguistics,and sociology,and they include representatives of public associationsaswell as professional associationsofadvertisingcompanies.Decisionsmade by theExpert Councilsare nonbindingfor theantimonopoly authorities; howeverthey provideweighty arguments in the investigation of cases on particular advertisements.196

Thefollowingexamples illustrate on what grounds theFAS supervises andcontrolsadherence to theadvertisinglegislation.

UnderArt. 5ofthe FederalStatute On Advertising, an advertisementmustbe bonafide and accurate.Unfair andfalse advertisingisforbidden. Unfair advertisingcontainsanincorrect comparison of theadvertised goods with goods in circulation that areproduced by other manufacturers. It may also discredit or defame aperson or taintsomebody’sbusiness reputation.

In this context, theStatute also forbids discrediting personswho do notuse theproducts advertised. Forexample, theadvertisingcompanySpektr placed on thenational TV channelsNTV and THT acommercial usingthe “Technosila” trademark. Theadvertisementshowedvariousproductsata certain price,accompanied by atextthat includedaman’snameand thewords “. .. is afool! Bought more expensive” (“Sanyokisafool! Boughtmoreexpensive”, “Andryukha is afool! He boughtmore expensive!”, etc.). Takinginto consideration thefindings of asociological survey on consumerattitude towardsthe advertisementand theopinion of theExpert Council on Enforcingthe Advertising Legislation, theCommission of theFAS foundthe commercial improper andinviolation of theFederal Statute On Advertising. Theadvertisementcreated anegativeattitude towardsthe personswho do not usethe advertised goods.FAS issued an orderdirectingthe advertiser to stop violatingthe legislation of theRussian Federation on advertising.

Spektr appealed thedecision andorderissued by theantimonopoly authority,incourt. On 19 May 2008, theMoscowArbitration Court dismissed theappeal andupheldthe FAS’ decisionand order.197

In itsturn, false advertisingmeansthat theadvertisingmassage containsincorrect data regarding variousaspects, forinstance:

•advantagesofthe advertised goods overthe goods in circulation produced by other manufacturers; •any product characteristics,including, itsnature, composition, conditionsofuse,and shelf life; •product range andcomplete set; •cost andprice of goods,paymentprocedures,discounts, conditionsofgoods delivery,exchange, repair andmaintenance; •research andtest findings; •actual demandfor aparticular advertised product; •manufacturer or seller of theadvertised goods.

196) TheFAS’sactivities on enforcementofthe advertisinglegislation (October 2007). 197) Press release of 21 May 2008, availableat: http://www.fas.gov.ru/english/news/n_19140.shtml?print

To giveanexample: in September 2008, theFAS foundthat aTVcommercial of the“TezTour” travel agency with theslogan “No.1 Tour Operator”, broadcast by Channel One, violated theFederal Statute On Advertisingbecause it contained unfair advertisinginthe form of an incorrect comparison of the advertisedservices with other services on themarket. But thecommercial wasinadmissiblealso because it contained falseinformation about theadvantagesofthe advertised services overservices provided by other companies.The decision wasappealed but wasupheldbyanarbitration (business) court of lowerinstance andalso–after afurther appeal –bythe FederalArbitration Court of the MoscowDistrict.198

Advertisingshouldnot encourage unlawful activities,violence andcruelty (Art. 5para. 4no. 2). An interestingcase in this regardwas decided on 29 January 2007 by theFAS. Thecase concerned violationsbya2006 TV commercial forthe beverage Pepsi-Cola. Theadvertisingportrayed agroup of youngpeopleatnightinacourtyardsurroundedbyhigh-riseapartmentbuildings playingmusical instruments anddrinkingPepsi-Cola. Their loud music disturbedinhabitants whoweretryingtoget somesleep andone of them asked theyoungsterstostopplayingthe musical instruments. Thegroup, however, increased thevolumeoftheir music by usinganamplification system. Theyoungsters’ actions portrayed in theadvertisementcan be considered as an administrativeoffence –breachingpeace and quiet at nighttime–underthe statutes of variousprovinces of theRussian Federation. Takingthis into consideration,the FASissued an ordertoPepsiCo Holdings Ltd. (theadvertiser) to stop these violationsofthe advertisinglegislation.199

Advertisements that lack part of substantiveinformation about theadvertised goods such as the termsfor their purchase andusage may result in distortingthe meaningofinformation andmay misleadcustomers. They aretherefore also forbidden. In May 2009, theFAS foundthat advertisements of “Rastishka” food productsbyits manufacturer Danonewereimproper andviolated theFederal Statute On Advertising. ThecomplaintcamefromWimm-Bill-Dann Foods.Itturned out that anumber of TV channels(NTV,TNT,7TV,Daryal-TV,STS,StPetersburg–Channel 5, REN-TV,TV-Tsentr,Rossia, Channel One, andothers) aired commercialsofthe food productswith theslogan: “Rastishka –grow well!”. Thecomplainant argued that thecontentand theform of presentingthe Danoneadvertisements were aimed at persuadingconsumersthat those productswerebabyfood, did notcontain preservatives andhad special (useful) ingredients that stimulate thegrowth andoverall developmentofchildren. Theinformation about protein andcarbohydrates,put on thepackagesofthe advertised goods,did notmeet therequirements specified in Clause 3.1.1.5 of the“Hygienic Safety andNutrition Value Requirements forFood Products. SanPiN 2.3.2.1078-01” (State Sanitary Standard) forbabyfoods.The package also lacked information on thepurpose andconditionsofusingbabyfoods,required under Part 3Art. 18 of theFederal Statute “On Quality andSafety of Food Products”.

Havinginvestigated thecase,the FASconcludedthat thelackofessential information in the advertisements forfood productsunderthe “Rastishka” trademark misled consumerswith regardto thepurposeand consumer qualities of theproducts. TheFAS orderedDanonetostopthe dissemination of thecommercials.200

Special restrictions exist forthe advertisingofbanking, credit,insurance or other financial services.Ifanadvertisementspecifiesany termsand conditionsofofferingrelevant services that affect theamountofincometobegained or theamountofexpenditurestobeincurred by thepersonswho will usethe services,the advertisementmustmakemention of all relevant termsand conditions.

On 21 February 2008, theFederal Antimonopoly Service imposed an administrative fineof RUB 40 000 on theGEMoney Bank forimproper credit advertising. Theadvertisementofthe consumer creditswas shownin2007 from October to December on television, namely by Channel One, Rossia and STS. It contained thefollowinginformation: “Simply takeupto300.000 RUB cash on your terms, from 15% interest per annum”.The advertisementspecified theminimum credit interest rate andthe maximum sum foracredit;however, other termsand conditionsdefiningthe cost of creditswereonly showninsmall, unreadableprintduringthe last secondofthe commercial. This prevented consumers

198) Press release of FASof5June2009, availableat: http://www.fas.gov.ru/english/news/n_24577.shtml?print 199) See thepress release of FASdated 30 January 2007 at: http://www.fas.gov.ru/english/news/n_10834.shtml?print 200) See theorderofFAS at: http://www.fas.gov.ru/adcontrol/adm_practice/a_25484.shtml andthe press release of FASof 3June2009 at: http://www.fas.gov.ru/english/news/n_24479.shtml?print

from comprehendingthis importantinformation. In other words, theinformation waspresented in such away that consumerswouldnot understandit. This,accordingtothe FederalAntimonopoly Service,meantthat theinformation waspractically absentinthe commercial. Followingthe violation, thebank wasissued an ordertostopbreachingthe advertisinglegislation of theRussian Federation andpay thefine.201

3. Co-operation with authoritiesoutsideofRussia

Russia is amember of theInternational TelecommunicationUnion (ITU) andparticipates in the activitiesofthe European BroadcastingUnion (EBU), whereitisrepresented by VGTRK. Because Russia lacksanindependent regulatory authority it is not, however, represented in EPRA –the European Platform of Regulatory Authorities. 202

Russia participates to thework of theStandingCommittee on Transfrontier Television of the Council of Europe (although it has notyet ratified theEuropean Convention on Transfrontier Televi- sion). Russia is also activeinthe framework of theCommonwealth of Independent States (CIS), which has itsown modelregulation of transfrontier broadcasting.

The Model StatuteOnTransfrontier Satellite Television andRadio Broadcastingand International Information Exchange via SatelliteMeans ,anadvisory legislativeinstrument, wasadopted with active participation of theRussian Federation by theInterparliamentary Assembly of CISMember States on 15 June1998.

It regulates relationsthat emerge in theprocess of:

•establishingsystemsofsatellite television andradio broadcastingand satellite telecommunication networks; •obtainingpermissiontouse such networks; •their actual use; •television andradio broadcastingvia satellitesofone state to theterritory of another state or to territories of severalcountries of theCIS; •formation, useand protection of data as it passes through satellite telecommunication systems (Art. 2).

WhileArt. 11 of theStatute obliges an operator that broadcastsfromthe territory of aCIS state to obtain alicence accordingtothe procedureenvisagedbynational law,itforbids theestablishment of separate licences forsatellite television andradio broadcastingand/or satellite telecommunications.

Therighttochoose which language(s) will be used forsatellite television andradio broadcasting belongs to theoperator,unless specifically established otherwise in thelaw on statelanguage (Art. 16).

Art. 19 establishes rules on advertising. Advertisement timeshall notexceed 15% of daily transmission time. In particular,Art. 19 forbids direct andindirect advertisingofalcohol andtobacco productsand anyform of surreptitiousadvertising.

Conflictsbetween international operators, or betweencountriesthat areconsumersofsatellitepro- grammes,orbetween such countries andinternational operatorsshall be resolved through nego- tiations. If reachinganamicable agreementisimpossiblethey shall becomesubject to thejurisdiction of theEconomic Court of theCommonwealth of Independent States (Art. 26).203

Taxation of television andradio broadcastingprogrammes andtelecommunicationsdata, unless they arebeingcarried in amaterial form across thenational border, shall notbeallowed(Art. 27).204

201) Press release of 21 February 2008, availableat: http://www.fas.gov.ru/english/news/n_17415.shtml?print 202) Formoreinformation on EPRA, see: www.epra.org 203) Forinformation about theCourt see: http://www.sudsng.org/about/structure/ 204) Commonwealth of Independent States: ModelStatute on Transfrontier BroadcastingbyAndreiRichter,IRIS1998-7: Extra. See: http://merlin.obs.coe.int/iris/1998/7/article100.en.html

IV.Summaryand Outlook

Notwithstandingthe attemptsofthe Russian legislatureinthe early 1990s,aspecific actonbroad- castinglicensinghas stillnot been adopted. Themain legal basisfor theregulation of thebroadcasting system remainsanoutdated and, concerninglicensing, rudimentary Statute On theMass Media of 1991.

Thesubsequentadoption of further legal instruments, such as the1994 Regulation On Licensing andthe 1999 Regulation On Competitions, caused someproblemsbecause of discrepancies and contradictionsbetween thedifferentacts. Accordingtothese legal instruments, thefederal regulatory bodies areentitled to developtheir ownpolicyinthe sphereofbroadcastingregulation includingthe methods andthe procedures forlicensing. Somepositivedevelopments, such as the de facto adoption of acompetition procedurestill lack alegally correct andcomprehensivecodification andpractical solutionsfor possibleconflicts. Beforethe proceduremeetsall Council of Europe standards andthe pertinentcase law of theEuropean Court of Human Rights further developments mightbeneeded.

If broadcastersare to be licensed andthe airwaves monitored in theinterestsofsociety as awhole, then it is important that theresponsibleauthority enjoys independencefromthe state.Furthermore, it shouldbeestablishedinatransparentway that takes accountofpublic opinion. In contrast, a licensingauthority that depends on thePresidentorthe governmentrisksusingthe radio frequency spectrum ineffectively,ifmeasured against thestandpointand needs of thepublic.Dual standards distinguishingbetween loyalorindependent broadcastersare likely to be applied.

While thecurrentruleobliges thebroadcaster to avoidbreakingthe law andthe termsofthe broadcaster’slicence (which is incidentally already arequirementofthe very licence) if thebroadcasters wishes to havethe licence automatically renewed, thecorrespondingprocedurefor recordingoffences that may lead to arefusal of renewingthe licence is by no meansclearly laid down.

In this regard, it is of interest to look into thePrinciples of theFormation, Organisation, and Activity of theSpecial State Body of theRussian Federation forLicensingTelevision andRadio Broad- casting(TheFederal Television andRadio BroadcastingCommission). ThePrinciples were developed in 2003 by aworkinggroup of Western andRussian expertsunderthe umbrella of an EU-fundedproject.205

Thegroup suggested that thelegal statusofthe Commission shouldbeestablished by aspecial statute similar to thestatute on another special federal state authority already in operation, i.e., the Central Election Commission. TheCommission shouldbeset up:

•toensurethe rightoffreedissemination of mass media information usingelectromagnetic waves (radio andTVbroadcasting); •toprovideguarantees forthe freedom of mass media, granted by Art. 29 of theConstitution of theRussian Federation, in thefieldofTVand radio broadcasting; •toprotect therights andinterestsofconsumers(TV viewers andradio listeners); •toelaborate andpursue thestate policyinthe fieldoflicensingTVand radio broadcasting; •toensurethe rational useofthe inherently limited radio frequency resources of thestate; •tointroduce,and monitor compliance with, lawsinthe fieldoftelevision andradio broadcasting; •torenderassistance in thedevelopmentoftelevision andradio broadcastinginthe Russian Federation, thedevelopmentofculture andeducation, respect of universally recognised moral norms, theRussianlanguage andthe languagesand cultures of thepeoples of theRussian Federation; •toprovideassistance in thedissemination of information-, popular scientific- andcultureand education TV andradio programmes as well as TV andradio programmes whose purposeisto contribute to thespiritual, aesthetic andcivic growth andeducation of children andyouth; •toupholdfamily values,promote ahealthylifestyle, etc.

205) ThetextisavailableinEnglish at: http://medialaw.ru/e_pages/laws/project/d3-0.htm

Theadventofdigital television andother new services andtechnologies has recently expedited manyprocesses as regards legal regulation which makes us believe that changesinthe status quo are imminentand that eventhough these changesmightlook technological andcosmetic they areinfact essential. What worries is that governmentpolicymay lead to allocatingplaces on thefirst three terrestrial multiplexeswithout anycompetitions andpublic discussions. Thereisthe dangerthat the wholesystem of licensingthat existedfor adecade willgiveway to thepracticeofappointingchannels undercircumstance wherethese appointments will notbesubject to anyreviewprocedures,licence conditionsoropen programmingpoliciesofthe broadcasters. Neither has thegovernmentproposed so farthe rules on theduration of digital terrestrial broadcastinglicences,the termsoftransfer forsuch licences or similar importantissues.The role of theFederal Competition Commission on Broadcasting is yettobeconfirmed.

As aresult, thesources forpluralism andabundance of programmingand information promised in theconcept of digital television in Russia arestill notapparent. Prospectsfor someform of public control overthe state broadcastersare rather bleak as is thepotential forestablishingself-regulation andco-regulation.Atleastmanyofthe attemptsthat were made in this regardoverthe last yearshave failed.

The Regulatory Framework for Audiovisual Media Services in Russia The Regulatory for Audiovisual Media Services Framework in Russia