Sergey Smirnov: By banning Russian propaganda, the UK will help Putin in his campaign against press freedom

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This article by Sergey Smirnov, editor-in-chief of MediaZona, was originally published at openDemocracy Russia.

The poisoning of Sergey Skripal has led to a sharp deterioration in UK-Russia relations. For now, London’s official moves, such as deporting 23 Russian diplomats and searching planes inbound from Russia, look moderate. But Boris Johnson’s statement on 16 March was likely unexpected for Moscow. The British foreign minister came to the conclusion that Vladimir Putin sanctioned the attack on Skripal too quickly, though the Kremlin has, for now, merely commented that Johnson’s tone was “unacceptable”.

Immediately after the attack, the British parliament began discussing possible responses to Moscow. One of the first proposals was to stop the Russia Today TV channel, which is financed by the Russian government and is openly involved in propaganda, from broadcasting in the UK. And here it’s important to understand that British MPs have raised an important topic — one that’s painful not just for the Kremlin, but the whole of Russian society, including the opposition.

Banning the Russian propaganda channel in the UK will provoke a predictable reaction in Moscow. And London needs to understand beforehand what will happen (though the Kremlin hasn’t particularly hidden its intentions). First, Maria Zakharova, spokesperson for Russia’s Foreign Ministry, then Margarita Simonyan, head of RT, made it clear: all British media will be banned in response. This will concern first and foremost the BBC. It’s unclear what will happen to the work of other British media in Russia.

The Kremlin brought independent media in Russia under control long ago. If they managed to deal with television by the mid-2000s, then the internet didn’t really attract the attention of the Russian authorities for some time after. But in recent years the pressure has increased: independent media are often brought under control via oligarchs loyal to the Kremlin. For big internet publications, every year it gets harder to work. High-class independent journalists are fired if they choose not to betray their principles. Meanwhile, the authorities aren’t in a rush to pressure foreign media working in Russia.

Here, it’s important to explain the actions of the Russian authorities, which have been and will be demonised quite enough. The issue is that Vladimir Putin and his team don’t have — and have never had — a clearly worked-out programme to destroy democracy, including freedom of speech. As a rule, all their decisions are situative. Russian television was taken under control after Putin was sharply criticised by the oligarchs Boris Berezovsky and Vladimir Gusinsky. The Russian president likes to act in response to any threats.

Take the events of the past six years. In 2011, hundreds of thousands of people, dissatisfied with the prospect of Putin returning to power, came onto the streets of Russian cities. The protest was suppressed, but the Russian authorities were seriously worried. They set themselves the task of makingeverything dependent on them, in order to ensure these scenes would never be repeated. The authorities undertook various actions: from formally liberalising the political sphere to passing repressive laws at the very moment when people stopped protesting.

Once again, it’s important to understand that the Kremlin’s reaction was a response to street protest. Although these laws may have been prepared beforehand, it seems they were thought up on the spot. Take the “Foreign Agents” law as an example — this law banned NGOs which take foreign funds from being involved in “political activity”. As is often the case in Russia, this law didn’t only touch on the work of human rights organisations, but many others, from environmental NGOs to, most recently, a diabetes society.

Why did they pass this law? Because the authorities believed that the 2011-2012 protests were organised from abroad. The mass protest started after election observers found large-scale falsifications at the parliamentary elections. The Golos election monitoring association prepared the observers. Golos received foreign funding. This is how the Kremlin put it together.

A similar situation happened with the Kremlin’s response to Ukraine. Putin was sure that he was simply responding to attempts by the west to take Ukraine further from Moscow’s influence — and, at the same time, breaking Putin’s agreements with Viktor Yanukovych. The 2012 ban on adopting Russian children (the “Dima Yakovlev” law) was also perceived as a response to hostile actions from the west.

Here, I’m trying to explain the Kremlin’s logic, which becomes even clearer in the case of Russia Today in the US. After RT was registered under the Foreign Agent Registration Act in November last year, Moscow started feverishly searching for return measures. The initial suggestions were more reminiscent of North Korea, e.g. banning all independent media, including social networks and even the internet. But then the Kremlin softened its position. All US media, which receive state financing, were declared foreign agents. Other US media have yet to fall under this law’s purview.

For me, there’s two reasons for this. The first, as I wrote above, is that the Kremlin is convinced that it’s defending itself from attacks. It has to respond. The second is that Moscow still leaves itself room for manoeuvre and bargaining. If you ban everything at once, there’s nothing to discuss further — and the Kremlin doesn’t want to end up isolated like North Korea. But the risk of isolation has risen after the Skripal poisoning, and the Russian authorities see this. They won’t make any sudden moves on their own.

This is what western states need to understand about the Kremlin’s behaviour. Currently, there’s no signs that Putin will change his traditional tactics after re-election. The Russian authorities will still monitor the domestic opposition and the actions of the west (and will respond to them). The west needs to understand that the Kremlin’s reaction vis-a-vis freedom of speech and human rights depends on their reaction. Not least of all because the Russian authorities love appealing to the west’s double standards. All actions in connection with RT are seen as the west’s hypocrisy in the field of freedom of speech.

By banning Russian propaganda, the western world helps Putin in his fight against freedom of speech.

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Japan’s designated secrets bill – the sound of the jackboots

Saul Takahashi reports for Open Democracy

(Photo illustration: Shutterstock)

(Photo illustration: Shutterstock)

As if it ever needed repeating, the people of Japan were once again treated to a reminder of how secretive and arbitrary their government can be during the nuclear disaster in Fukushima 2011. Government foot-dragging and reluctance to divulge information meant that people remained exposed to high doses of radiation for over a month after the meltdown with potentially grave health consequences. Now, what is easily the most right wing government Japan has seen in decades has forced through parliament a bill to classify “special secrets” that would essentially give the executive carte blanche to withhold information on a massive scale, not seen since the period of militarism directly leading up to, and during, World War 2.

The law, known as the Designated Secrets Bill, was hurriedly rammed throughthe more powerful lower house on 26 November, and then passed through the upper house in equally speedy fashion on 6 December. It gives unrestricted power to the executive to designate a broad range of information as national secrets. There are no effective checks or balances, no truly meaningful opportunity for the involvement of any independent body, and no effective way to ensure that the executive is not abusing its power. Only the barest of outlines of information regarding what sort of information has even been designated as secret will be disclosed to the public. The bill would violate the right of people’s right to access information, severely punish whistleblowers, and have a chilling effect on journalism, civil society organizations, and the actions of concerned citizens.

The government has repeated the mantra that the bill is necessary because Japan is a “heaven for spies” due to a lack of espionage and state secrets legal infrastructure. They would have the people believe that the government lacks the power to keep information confidential, and that Tokyo is full of foreign agents who freely collect sensitive secrets. Nothing could be further from the truth – the government already designates a wide range of information as confidential –410,000 pieces of information have been designated so since a sweeping government policy was implemented on this in 2009.

In addition, in response to a question in parliament, Prime Minister Abe admitted that the government was aware of five cases of “leaks of important information by civil servants” over the past fifteen years. Five cases over fifteen years can hardly be described as a “heaven”. The truth, as even the government admits, is that this bill is intrinsically connected with another bill adopted by parliament in November, establishing a National Security Council much along the lines of the US body by the same name. Indeed, the Secrets bill specifically provides for the sharing of designated secrets with foreign governments, who are apparently more trustworthy than Japan’s own people.

Constitutional infringement

There are four categories of information listed in the bill that could potentially qualify for designation as a secret – defense, diplomacy, “designated dangerous activities”, and prevention of terrorism – but they are worded in an extremely broad manner. Seemingly any kind of information related to defense could qualify, as well as any “important security related information” in the area of foreign relations, any information related to official efforts in the area of counter terrorism, and any information related to “activities potentially harmful to national security”. The possible designations of particular information as ‘secret’ are essentially infinite; though there is a principled maximum period of sixty years (already extremely long) stipulated in the amended bill, there are also categories of information – almost equally sweeping – which it is possible to designate secret with no time limit. The role envisioned for parliament is extremely limited, to the extent that it would most probably be meaningless.

The bill does state that, in applying the law, the government should “fully take into account” journalistic reporting “aimed at ensuring the peoples’ right to access information”. These provisions are “vague” to say the least, and appear to grant the government leeway to decide which reporting is “aimed at ensuring” this right. But punishments for the revealing of secrets are severe – up to ten years imprisonment for civil servants or persons subcontractors dealing with secrets. Persons who obtain secrets through illegal means are also subject to up to ten years imprisonment, and persons who “incite” the revealing of secrets are subject to up to five years imprisonment. Persons who reveal secrets through negligence can also be subject to imprisonment, as are persons who “incite” or conspire to divulge secrets.

It is worth pointing out that the right to access information is not only a vital element of the right to freedom of expression, but also a fundamental human right guaranteed by the Japanese constitution. Article 21 states that “freedom of…speech, press, and all other forms of expression are guaranteed” and, in accordance with developments in international law, this article has been interpreted by the Japanese courts to include the right to access information. The same article also states that the government must “refrain from violating fundamental human rights in an unreasonable manner” in applying the law, begging the question as to what “unreasonable” means in this new environment.

Even worse, article 21 goes on to say that reporting by the media will not be punished “insofar as those activities are aimed solely at ensuring the public interest and are not based on illegal or clearly unreasonable methods”. There is no definition of what the “public interest” means in this context, and just how the government will ascertain this. The government has even stated that some bloggers and other social media activists may not fall under the definition of “media” in this article, indicating that even the above pathetic safeguards would not apply.

As one could imagine, public outcry regarding the bill has been intense with near-daily demonstrations and criticism from human rights organizations, including the Japanese Bar Association, former prominent conservative MPs, academic societies, journalist societies, and prefectural and local councils. Unusually for a country that is used to being under the radar of international scrutiny, the bill was also the target of harsh criticism from human rights actors in the United Nations. The UN Human Rights Council Special Rapporteur on Freedom of Expression together with the Special Rapporteur on the Right to Health issued a statement criticizing the sweeping provisions of the bill, and the lack of protection for whistle blowers. The UN High Commissioner for Human Rights also expressed similar concerns.

Government responses to these concerns have been a shining example of evasion, vagueness, and a condescending ‘shut up and trust us’ mentality – indeed, the fact that the government opened the bill to public comment for only two weeks, as opposed to the normal practice of a full month, shows the contempt in which it holds views it does not agree with. One NGO filed a request for the minutes of the meetings of a government panel that had discussed the provisions of the bill – minutes that date back to 2008. In an insult to the notion of government accountability, the documents the NGO was provided with were almost completely redacted, i.e. blacked out.

A new chilling effect

In one telling response to the obvious question of what would entail a “clearly unreasonable method” of reporting, Minister Masako Mori, the female Cabinet member charged by Prime Minister Abe to steer the bill through parliament seemingly for no reason other than placing a woman in front of the cameras would give the bill a ‘soft’ image, gave the example of the infamous Nishiyama case of 1972. Takichi Nishiyama, a former journalist for Mainichi Shimbun, a major Japanese broadsheet, was arrested for obtaining information from a Japanese Foreign Ministry secretary (with whom, it later came to light, he had been having an affair) regarding a secret agreement between Japan and the US surrounding the return of Okinawa to Japanese sovereignty. Though the agreement that had been made public by the two governments had stated that certain expenses totaling USD 4 million would be paid by the US, this was an outright lie, and the secret agreement specified that the costs would be footed by the Japanese.

For his efforts in exposing government deception of the people, Nishiyama was convicted in 1978 of inciting a civil servant to reveal confidential information. 30 years later, declassified US government documents confirmed Nishiyama’s allegations – and yet his name is used by the government as a good example of ‘bad’ journalism. Tellingly, Mori has declared that subjects of intense public debate, such as the Trans-Pacific Partnership (TPP) economic agreement currently being negotiated behind closed doors with the United States and other countries, could be designated as secrets. And government reassurances have been unable to quell fears that with such broad provisions in the bill, important information regarding nuclear safety could be designated as secret as well.

Perhaps most important in all of this is the chilling effect that the law would have on people accessing or publishing any sort of information. With the opaque phrasing of the law persons will have no idea as to whether information they are accessing or publishing is in fact a designated secret.  The Japanese Bar Association notes that, under the provisions of the bill, it is entirely plausible that people could be accused and tried without them or their lawyer being told exactly what information they are accused of having revealed. Unsurprisingly, government assurances that persons who accidentally come across or reveal secrets would not be punished are not convincing – and logic indicates that, even if they ended up not being punished, such persons would be subject to investigation.

In the early hours of 5 December, the government announced in response to mounting pressure that it would create two ‘independent’ bodies to oversee implementation of the law and ensure that there was no abuse. However, of these two bodies, only one is truly independent – a panel of legal experts which will advise the PM in creating guidelines regarding the designation of secrets, and which will receive an annual report on implementation of the law. However, it appears that the PM will only provide this panel with a simple outline stating the number of pieces of information that had been designated secret by category. Beyond that, there is no clarity as to how this panel would operate, and how much power it would actually have. It would be child’s play for the government to appoint a panel of government cronies to rubber stamp a one page note.

Calling the other body to be created “independent” is an insult to one’s intelligence. The “oversight committee for information retention” will monitor application of the law and ensure that there is no abuse, and is clearly the more powerful body of the two. However, it will be made up of undersecretaries (the highest ranking civil servants) from the Foreign and Defence Ministries – the two ministries that will undoubtedly be designating the largest number of secrets. Unsurprisingly, no one in Japan expects any kind of serious oversight from this body.

Many opposed to the bill have pointed out strikingly similar language in legislation from darker times, in particular the infamous National Defence and Public Security Act of 1941, which was used by the government to jail opponents of the war effort. The Japanese experience from those days is that government secrets lead to more government secrets, and then to war. To use a phrase the generation that remembers the 1930s often uses to describe the creeping nature of militarism – the jackboots come closer and closer.

This article was originally posted on 10 Dec 2013 at It is reposted here with Creative Commons permission.

Getting copyright right

“Digital” means copying. Attempts to defend copyright the old-fashioned way could have unforeseen consequences for the web, says Joe McNamee.

This article was originally published on Open Democracy, as a part of a week-long series on the future digital freedom guest-edited by Index