Banning Russia Today and Sputnik in Europe is a bad idea
By Raghav Mendiratta and Natalie Alkiviadou
On March 1, 2022, Regulation 2022/350 of the Council of the European Union (EU) suspended broadcasting activities of Russia Today (RT) and Sputnik in the EU until Russia ends the aggression against Ukraine and its media “cease to conduct propaganda actions” against the EU and its Member States. The Regulation (as well as the respective Council Decision) justified this measure on the grounds that Russia has engaged in a "systematic, international campaign of media manipulation and distortion of facts to enhance its strategy of destabilization of its neighboring countries and of the Union and its Member States".
On March 4, in an email addressed to Google and cataloged on the Lumen database, the European Commission required that search engines such as Google must delist RT and Sputnik. It further states that social media “must prevent users from broadcasting (lato sensu) any content of RT and Sputnik” while accounts belonging to the two or their affiliates must be suspended. Posts made by individuals that reproduce RT and Sputnik content must not be published and if they are, must be deleted. This is a particularly broad interpretation of the Regulation and imposes a general monitoring obligation on operators that might be disproportional. A general monitoring obligation is contrary to the doctrine of conditional liability attached to the E-Commerce Directive and the proposed text of the Digital Services Act (DSA). This means that companies are not obligated to enforce measures for purposes of blanket monitoring of user content. Instead, companies are liable for illegal content that they are made aware of. In the DSA, this takes the form of a “notice and take down” regime.
The Limited Effect of Propaganda and the Legitimacy of the Ban
RT and Sputnik are both closely linked to the Kremlin. Sputnik was created by a Presidential decree with the aim to “report on the state policy of Russia abroad”. RT is fully financed by the Russian government and is included in an official list of core organizations of strategic importance to Russia. They have both been documented in spreading disinformation in Europe on various instances. However, banning them entirely deviates from the standard European approach to the handling of disinformation, which does not include blanket bans and removals. In fact, the proposed text of the DSA stipulates that in “extraordinary circumstances” including war, where the online environment may be misused for the rapid spread of illegal content or disinformation, the European Commission may initiate the drawing up of voluntary crisis protocols to coordinate a response in the online environment. Such protocols may include measures which are “strictly necessary to address the extraordinary circumstance” and “must not amount to a general obligation for…very large online platforms to monitor the information”.
Further, the approach to RT and Sputnik is misplaced and does not reflect empirical and socio-political realities. Empirical data increasingly suggests that the perception of social media being awash in misinformation is exaggerated.
Considering an evidence-based approach on the limited impact of propaganda, the role of counter-narratives, and the over-zealous nature of the measures, it is doubtful whether the Regulation and the Commission’s interpretation are compatible with International Human Rights Law (IHRL). Article 20(1) of the International Covenant on Civil and Political Rights (ICCPR) prohibits any propaganda for war. However, General Comment 34 of the Human Rights Committee highlights that any legal prohibitions arising from Article 20 must be justified and be in strict conformity with Article 19 which provides for freedom of expression. Restrictions under Article 19 can only be legitimate if theymeet the strict tests of necessity and proportionality which entail an immediate and direct connection between the speech and the threat whilst measures must be “the least intrusive instruments” to achieve the legitimate aim pursued. These could include labelling or downranking or tech-oriented solutions to prevent virality. However, we are confronted with a lack of a substantive and evidence-based justification for the above blanket ban of RT and Sputnik which, subsequently, does not reflect a direct link with the aim pursued and is over-broad and over-intrusive.
Further, the approach prevents users to engage with such content for political discourse or counter-narratives and sets a negative precedent for social media platforms by signaling those blanket removals of content are necessary and proportional. Moreover, thanks to the Brussels Effect and the digitalization of the world stage, such measures could ultimately lead to widespread censorship not just in the EU but also in other parts of the world, stifling discussion of issues of public interest as well as criticism of governments. Further, it further opens the floodgates for authoritarian leaders around the world including Putin himself to cite this as precedent for the censoring of content in their own countries. Unsurprisingly, in the days following the EU Regulation of March 1, Russia decided to ban numerous Western media outlets including BBC, Deutsche Welle, Euronews, and others.
RT (France) has challenged the sanctions before the EU’s General Court, which will be called to make significant calls on the current situation but, also, on the future of free speech in the union. Any outcome will be a double-edged sword. On a political level, a judgment in favor of RT (France) would give an immense boost to Putin's propaganda machine. A judgment in favor of the restrictive measures would further deteriorate the already vulnerable position which freedom of expression finds itself at and further dilute central rule of law doctrines such as proportionality, necessity, and transparency.
A dangerous card from the authoritarian’s playbook
In light of the above, we argue that the conformity of the ban with IHRL is dubious while it goes against the general position of the EU towards handling disinformation. Moreover, letting RT and Sputnik run its course unfettered thereby allowing political discourse and, most importantly, counter-narratives would be more effective to tackle the problems associated with these two outlets. As noted in her report on disinformation, the UN’s Special Rapporteur on the Freedom of Opinion and Expression “attempts to combat disinformation by undermining human rights are short-sighted and counterproductive”. Freedom of expression must be given the position it deserves in times of peace and war. There ought to be space to allow war critics, ordinary citizens, and scholars to debunk myths and counter disinformation. If the EU does not reverse its free speech path in the discussed cases of RT and Sputnik, it may be playing a dangerous card from an authoritarian’s playbook.
Natalie Alkiviadou is senior research fellow at the Future of Free Speech Project at Justitia.
Raghav Mendiratta is a tech policy counsel and a Legal Fellow at the Future of Free Speech Project (Justitia and Columbia University, New York)